     IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON




STATE OF WASHINGTON,
                                                 No. 73905-1-1                  ro

                     Respondent,
                                                 DIVISION ONE
      v.

                                                                                O

BRANDON BIGSBY,                                  PUBLISHED OPINION              "

                     Appellant.                  FILED: November 28, 2016



       Spearman, J. — Under the Sentencing Reform Act, a trial court has

authority to enforce the requirements of sentences that it imposes. The trial court

sanctioned Brandon Bigsby for failing to meet a sentence requirement. Bigsby

challenges the sanction, arguing that, because he was on community custody

under the supervision of the Department of Corrections (DOC), only DOC had

authority to sanction him. But, because the trial court also had authority to

impose sanctions, we affirm.

                                      FACTS

       Bigsby pleaded guilty to possession of a controlled substance. The trial

court sentenced him to 75 days confinement and 12 months community custody

under DOC supervision. As conditions of community custody, the trial court

ordered Bigsby to obtain a chemical dependency evaluation and comply with
No. 73905-1-1/2


treatment recommendations. The court set a review hearing for August 5, 2015.

The trial court informed Bigsby that it would issue a warrant for his arrest if he

failed to appear for the hearing. The court also informed Bigsby that if, at the

review hearing, he failed to produce paperwork showing that he had obtained a

drug evaluation and begun treatment he would go back to jail for 30 to 60 days.

       Bigsby received credit for time served and completed his term of

confinement on May 27, 2015. Over the next two months, he violated several

conditions of community custody. The DOC alleged that Bigsby absconded from

supervision, used controlled substances, failed to report to his community

corrections officer (CCO), failed to attend a training program, failed to complete a

substance abuse treatment program, and failed to abide by monitoring for drug

use. DOC took Bigsby into custody, found him guilty of all violations, and

imposed a sanction of 18 days confinement.

       Bigsby was serving this sanction on August 5, the day of his review

hearing. He did not attend the hearing or communicate with the trial court. The

court issued a bench warrant for his arrest.

       DOC released Bigsby on August 10. Bigsby failed to report to his CCO

and DOC took him back into custody until September 8. DOC then held Bigsby

under the trial court's bench warrant.

       On September 14, 2015, Bigsby appeared in court for a review hearing.

He had not completed a chemical dependency evaluation or begun treatment.

Bigsby argued that he would have gotten a drug evaluation as soon as he was

released from DOC custody on August 10, if he had not been detained under the
No. 73905-1-1/3


trial court's bench warrant. He also argued that, because he was under the

supervision of DOC, only DOC had authority under the Sentencing Reform Act

(SRA) chapter 9.94A RCW to impose sanctions.

       The trial court found that Bigsby violated the conditions of the judgment

and sentence by failing to get a drug evaluation.1 The court imposed a sanction

of 30 days confinement and set another review hearing for December 14. The

court stated that, if Bigsby was not yet in treatment by that time, it would set

further periodic review hearings and impose sanctions for any noncompliance.

        Bigsby served the sanction imposed. He failed to appear for the

December 14 review hearing but appeared for a hearing on December 31. He

has failed to appear for subsequent review hearings and a bench warrant for his

arrest is outstanding.

                                         DISCUSSION

        Bigsby appeals the trial court's sanction. He asserts that, under the 2008

amendments to the SRA, only DOC may enforce conditions of community

custody.

        As a preliminary matter, we note that Bigsby's appeal is moot because he

has already served the sanction imposed by the trial court. See In re Cross, 99

Wn.2d 373, 376-77, 662 P.2d 828 (1983) (stating that a case is moot "if a court

can no longer provide effective relief) (citing State v. Turner. 98 Wn.2d 731, 733,

658 P.2d 658 (1983)). But we may consider a moot issue if it involves a matter of

        1 Bigsby asserts that the trial court sanctioned him for failing to appear at the August 5
review hearing. Brief of App. at 4-5. This misconstrues the record. The trial court sanctioned
Bigsby for failing to complete a chemical dependency evaluation.
No. 73905-1-1/4


"'continuing and substantial public interest.'" id. (quoting Sorenson v. City of

Bellinqham. 80Wn.2d 547, 558, 496 P.2d 512 (1972)). To determine whether an

issue presents a matter of substantial public interest, we consider (1) whether the

issue is of a public nature, (2) whether a determination is necessary to guide

public officers, and (3) whether the question is likely to recur, jd.

       Whether the trial court may sanction an offender on community custody is

an issue that affects the public. It appears that Washington courts have not

addressed the issue since the 2008 amendments to the SRA and a

determination is necessary to provide guidance to public officers. The likelihood

of recurrence is high, as even in this case Bigsby may face further sanctions. We

conclude that Bigsby's appeal presents an issue of substantial and continuing

public interest that warrants review.

       Bigsby asserts that, under the SRA as amended in 2008, only DOC may

sanction offenders who are under DOC supervision. The State contends that the

trial court and DOC continue to have concurrent authority to impose sanctions,

as they did prior to the 2008 amendments.

       Interpretation of the sanction provisions of the SRA is a question of law

that we review de novo. State v. Ashenbemer, 171 Wn. App. 237, 246, 286 P.3d

984 (2012) (citing State v. Gonzalez. 168 Wn.2d 256, 263, 226 P.3d 131 (2010)).

Our goal in interpreting a statute is to discern and implement the intent of the

legislature. \± We discern legislative intent from the statute's plain language,

related provisions, and the statutory scheme as a whole, jd. (citing State v.

Enqel, 166 Wn.2d 572, 578, 210 P.3d 1007 (2009)).
No. 73905-1-1/5


       Bigsby relies on RCW 9.94A.6332, a 2008 amendment to the SRA that

outlines procedures for imposing sanctions based on the sentencing scheme

applicable to the offender's crime. After addressing several sentencing schemes

not applicable here, the statute provides that "[i]n any other case, if the offender

is being supervised by the department, any sanctions shall be imposed by the

department. . . ." RCW 9.94A.6332(7). The statute further states that "[i]f the

offender is not being supervised by the department, any sanctions shall be

imposed by the court. . . ." RCW 9.94A.6332(8). Bigsby contends that by its plain

language, RCW 9.94A.6332 only authorizes the trial court to impose sanctions

when an offender is not under DOC supervision.

       The State relies on RCW 9.94B.040(1), which authorizes the trial court to

impose sanctions "[i]f an offender violates any condition or requirement of a

sentence . . . ." The State asserts that, based on the previous version of this

statute, this court determined that the trial court and DOC have concurrent

jurisdiction to impose sanctions in State v. Gamble, 146 Wn. App. 813, 820, 192

P.3d 399 (2008).

       In that case, the trial court sentenced Gamble to a term of community

custody and imposed conditions related to substance abuse treatment. Id. at

815. Gamble violated the conditions and the trial court imposed a sanction. Id at

815-16. The statutes governing Gamble's sentence expressly authorized DOC to

impose sanctions but were silent as to the trial court's authority. Id. at 817.

Gamble argued that the specific grant of sanctioning authority to DOC indicated

that DOC was the only entity that could impose sanctions. Id.
No. 73905-1-1/6


       This court considered Gamble's argument in light of former RCW

9.94A.634(1) recodified as 9.94B.040 (Laws of 2008, ch. 23, §56). Id at 818.

That statute expressly authorized the trial court to impose sanctions "[i]f an

offender violates any condition or requirement of a sentence . . . ." |d (quoting

former RCW 9.94A.634(1)). The Gamble court held that this provision

"unambiguously demonstrates that the superior courts retain authority ... to

enforce the conditions of the sentences that they impose." id By expressly

granting DOC authority to impose sanctions in specific circumstances, the

legislature may have signaled that this was the preferred procedure in those

cases. Id at 818-19. But we determined that we could only conclude that DOC

had sole sanctioning authority in those circumstances by ignoring former RCW

9.94A.634(1). Id at 819. Giving effect to both statutory grants of authority, we

held that the trial court and DOC have concurrent sanctioning authority. \± at

820.

       Former RCW 9.94A.634(1) was recodified as RCW 9.94B.040 as part of

the SRA's 2008 amendments. Laws of 2008, ch. 23, §56. The text of the statute

did not change. The statute states: "If an offender violates any condition or

requirement of a sentence, the court may modify its order of judgment and

sentence and impose further punishment in accordance with this section." RCW

9.94B.040.

       The State argues that Gamble controls in this case. It asserts that, just as

former RCW 9.94A.634 authorized a trial court to impose sanctions under the

previous provisions of the SRA, RCW 9.94B.040(1) authorizes a trial court to
No. 73905-1-1/7


impose sanctions under the current SRA.2 Bigsby argues that Gamble does not

control. He contends that the recodified statute, RCW 9.94B.040, only applies to

crimes committed before the current community custody provisions took effect.

We agree with the State.

        Bigsby relies on RCW 9.94B.010(1), which states that ch. 9.94B RCW

"codifies sentencing provisions that may be applicable to sentences for crimes

committed prior to July 1, 2000." But, while the statute refers to pre-2000

offenses, it does not state that the chapter applies only to those offenses. By

stating that the chapter "may be applicable," RCW 9.94B.010(1) is permissive as

to pre-2000 offenses. See State v. Bartholomew, 104 Wn.2d 844, 848, 710 P.2d

196 (1985) (stating that, unlike the word "'shall,'" the word "'may'" indicates

discretion or permission) (quoting, e.g., Crown Cascade. Inc., v. O'Neal, 100

Wn.2d 256, 668 P.2d 585 (1983)). And the statute is silent as to post-2000

offenses.

        At oral argument, Bigsby also argued that RCW 9.94B.040 only applies to

pre-2000 offenses because any other reading is incompatible with RCW

9.94A.6332. Chapter 9.94A.6332(7) states that "if the offender is being

supervised by the department, any sanctions shall be imposed by the




       2 The State relies on Ashenberner, 171 Wn. App. 237, to support the proposition that
Gamble continues to apply. The Ashenberner court relied on Gamble and RCW 9.94B.040(1) to
conclude that the court has authority to impose sanctions for violation of a restitution order. ]d. at
250. Butthe underlying crimes in that case were committed prior to July 1, 2000. Jd at 239.
Ashenberner does not address whether RCW 9.94B.040(1) applies to crimes committed after that
date.
No. 73905-1-1/8


department." Bigsby contends that reading RCW 9.94B.040(1) to authorize the

trial court to impose sanctions renders RCW 9.94A.6332 meaningless.

       We read the provisions of the SRA together. Ashenberner, 171 Wn. App.

at 246 (citing Millav v. Cam, 135 Wn.2d 183, 199, 955 P.2d 271 (1990)). Where

provisions of an act appear to conflict, we may discern legislative intent by

examining the legislative history of the enactments. Gorman v. Garlock, Inc., 155

Wn.2d 198, 211, 118 P.3d 311 (2005) (citing Timberline Air Serv.. Inc., v. Bell

Helicopter-Textron, Inc., 125 Wn.2d 305, 312, 884 P.2d 920 (1994)).

       In this case, the legislature provided statements addressing both

applicability and intent. Laws of 2008, ch. 231, §6, §55. The legislature enacted

the 2008 amendments to the SRA in 61 sections. Laws of 2008, ch. 231. The

statutes at issue, RCW 9.94A.6332 and RCW 9.94B.040, were enacted in

sections 18 and 56. Laws of 2008, ch. 231, §18, §56. Section 55 addresses

applicability and states that "[sjections 6 through 58 of this act apply to all

sentences imposed or reimposed on or after August 1, 2009, for any crime

committed on or after the effective date of this section." Laws of 2008, ch. 231,

§55(1). The statement of intent specifies that "[sjections 7 through 58 of this act

are intended to simplify the supervision provisions of the sentencing reform act

and increase the uniformity of its application. These sections are not intended to

either increase or decrease the authority of sentencing courts or the department

relating to supervision . . . ." Laws of 2008, ch. 231, §6.

       We conclude that RCW 9.94B.040(1) applies to crimes committed after

the 2008 amendments took effect and that those amendments did not divest the



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No. 73905-1-1/9


trial court of authority to enforce the conditions of a sentence that it imposes. By

granting specific sanctioning authority to DOC, the "legislature may ... have

intended that this be the preferred procedure for enforcing community custody

conditions .. . ." Gamble, 146 Wn. App. at 818-19. But as the SRA also

expressly grants the sentencing court authority to impose sanctions, the trial

court did not err in sanctioning Bigsby for failing to comply with sentence

conditions.

         In the event that he does not prevail, Bigsby requests that we deny any

claim for costs of appeal. We may consider whether to impose appellate costs

when the issue is raised in the appellant's brief. State v. Sinclair, 192 Wn. App.

380, 388-89, 367 P.3d612 (2016) review denied, 185 Wn.2d 1034, 377 P.3d

(2016) (citing RAP 14.4). When the trial court has determined that the appellant

is indigent, indigency is presumed to continue throughout the appeal. ]d at 393.

         The trial court determined that Bigsby was indigent. The State makes no

argument concerning appellate costs and presents no evidence to rebut the

presumption that Bigsby is indigent. We decline to award costs of appeal to the

State.


         Affirmed.




WE CONCUR:
