                                                                           FILED 

                                                                         FEB. 6,2014 

                                                               In the Office of the Clerk of Court 

                                                              WA State Court of Appeals, Division III 



         IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

                            DIVISION THREE 


In re Postsentence Review of:                )
                                             )         No. 31606-8-111
                                             )
                                             )
                                             )
GABRIELA ARAGON BARRAZA.                     )
                                             )         UNPUBLISHED OPINION
                                             )

      FEARING, J. - In order to correct two perceived violations of the Sentencing

Reform Act of 1981(SRA), chapter 9.94A RCW, the Department of Corrections (DOC)

seeks postsentence review of the Franklin County Superior Court judgment and sentence

of Gabriela Aragon Barraza for her unlawful possession of methamphetamine. First,

DOC contends that the sentencing court violated RCW 9.94A.589 by ordering Barraza's

sentence for unlawful possession to run concurrently with an earlier sentence for a prior

felony. Second, DOC contends that the sentencing court violated RCW 9.94A.505(6) by

crediting Barraza 247 days served toward her unlawful possession sentence when she

served part of that time for the prior felony. We agree and remand for resentencing.

                                            FACTS

      On April 24, 2008, Gabriela Aragon Barraza committed, in Benton County, a

residential burglary in violation ofRCW 9A.52.025-a class B felony.
No. 31606-8-111
In re Postsentence Review ofBarraza


On April 15, 2012, Barraza, in neighboring Franklin County, unlawfully possessed

methamphetamine in violation ofRCW 69.50.4013-a class C felony. Barraza pled

guilty to both offenses. This postsentence review concerns the interrelation of Barraza's

sentences for these two crimes.

      On July 17,2008, Benton County Superior Court granted Barraza a special drug

offender sentencing alternative (DOSA) sentence for the 2008 residential burglary.

Based on her offender score, the standard range for sentencing was 63-84 months. Under

RCW 9.94A.660, a DOSA sentence is calculated using the midpoint of the standard

range-here, 73.5 months. The defendant serves up to half of the sentence in prison, and

the remainder in community custody. RCW 9.94A.662. After her serving less than two

years in prison, DOC released Barraza into community custody for work release in 2010.

      On April 15,2012, Gabriela Barraza was arrested, in Franklin County, for

unlawful possession of methamphetamine. In part because of this arrest, DOC revoked

Barraza's DOSA sentence. To serve the remainder of her sentence for residential

burglary, Barraza was transferred to Benton County on May 1.

      On December 10, DOC transferred Gabriela Barraza to Franklin County jail to

face the April 15, 2012 charge of unlawful possession of methamphetamine. Barraza

pled guilty on January 15,2013. On January 22, after 44 days in Franklin County jail,

the Franklin County court sentenced Barraza to 12 months plus 1 day confinement. The




                                            2

No.31606-8-II1
In re Postsentence Review ofBarraza


Franklin County court credited Barraza 247 days served toward her sentence for unlawful

possession. By handwritten notation, in parentheses, the Franklin County court

explained that "time served in the department of corrections is included." Postsentence

Pet., Ex. I at 7a of 10.

       DOC then regained custody of Barraza on January 24. Upon reviewing the

January 22,2013 judgment and sentence, DOC believed that the Franklin County court

erred in two ways. First, the sentencing court ordered the Franklin and Benton County

sentences to run concurrently-violating RCW 9.94A.589. Second, the Franklin County

court credited Barraza 247 days served for her unlawful possession conviction, but her

time served for only that charge was the 44 days she spent in Franklin County jail.

       DOC must first attempt to correct any perceived sentencing errors through the trial

court. RCW 9.94A.585(7). To this end, on January 29,2013, DOC e-mailed the

prosecutor and the defense attorney requesting an amendment to the Franklin County

judgment and sentence. On March 28, DOC sent the trial court and all parties a letter

asking the Franklin County court to amend its judgment and sentence. DOC received no

response to either. DOC then initiated this action pursuant to RCW 9.94A.585(7) and

RAP 16.18.

       With the two sentences running concurrently, Barraza's early release date was

May 9. According to DOC, "Ifher sentences were running fully consecutively, her early

release date would be approximately January 14,2014." Postsentence Pet. at 4.

                                            3

No. 31606-8-III
In re Postsentence Review ofBarraza


                                       ANALYSIS

                          Concurrent or Consecutive Sentences

       Under RAP 16.18, "The Department of Corrections may petition the Court of

Appeals for review of a sentence committing an offender to the custody or jurisdiction of

the Department of Corrections. The review shall be limited to errors of law." Accord

RCW 9.94A.585(7). Whether a sentencing court exceeded its statutory authority under

the SRA is an issue oflaw this court reviews de novo. State v. Murray, 118 Wn. App.

518,521, 77 P.3d 1188 (2003). To the extent this issue implicates questions of statutory

interpretation, review is also de novo. State v. Eaton, 168 Wn.2d 476,480,229 P.3d 704

(2010). A court may impose only a sentence that is authorized by statute. In re

Postsentence Review ofLeach, 161 Wn.2d 180, 184, 163 P.3d. 782 (2007). Ifa sentence

is incongruent with statutory authority, this court reverses and remands for resentencing.

State v. Hale, 94 Wn. App. 46,53,56,971 P.2d 88 (1999).

       The first statute raised by DOC is RCW 9.94A.589(2)(a), which reads:

"[W]henever a person while under sentence for conviction ofa felony commits another

felony and is sentenced to another term of confinement, the latter term shall not begin

until expiration of all prior terms." (Emphasis added.) Here, Franklin County Superior

Court ordered Barraza's unlawful possession and residential burglary sentences to run

concurrently. But Barraza committed unlawful possession "while under sentence for

conviction ofa felony." In State v. Roberts, 76 Wn. App. 290, 291, 884 P.2d 628 (1994),

                                            4

No. 31606-8-111
In re Postsentence Review ofBarraza


this court held that persons under community supervision were "under sentence of

felony" for purposes ofRCW 9.94A.589(2)(a), then codified at former RCW

9.94A.400(2). This is the case here. Barraza was still in community custody when she

committed unlawful possession in Franklin County. Given that both crimes are felonies,

RCW 9.94A.589(2)(a) applies.

       Because Barraza committed unlawful possession while "under sentence of felony"

for residential burglary, she cannot begin to serve her Franklin County sentence until

after she serves the entirety of her Benton County sentence. Under RCW

9.94A.589(2)(a), the two sentences must run consecutively.

       Barraza seeks to validate the concurrent sentences by arguing that the sentencing

court imposed an exceptional sentence under RCW 9.94A.535. Nevertheless, the

January 22, 2013 judgment and sentence has a section regarding exceptional sentences.

In that section, the sentencing court made no indication that it was imposing an

exceptional sentence. Further, in order to impose an exceptional sentence, the court must

"set forth the reasons for its decision in written findings of fact and conclusions of law."

RCW 9.94A.535. The Franklin County court entered no such findings or conclusions.

                                        Time Served

       The second statute raised by DOC is RCW 9.94A.505(6), which reads: "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

                                              5

No.31606-8-III
In re Postsentence Review ofBarraza


is being sentenced." The same standard of review applies to this issue. If the January 22,

2013 judgment and sentence is incongruent with statutory authority, this court reverses

and remands for resentencing. Hale, 94 Wn. App. at 53, 56.

      The Franklin County Superior Court credited Barraza with 247 days served for the

unlawful possession sentence. We do not know how the sentencing court arrived at 247

days. The time between Barraza's April 15, 2012 arrest and her January 22, 2013

sentencing was 284 days. Regardless, 247 days exceeds the statutory authority.

      Between April 15 and December 10,2012, or for 239 days, Barraza served her

revoked DOSA sentence for the Benton County residential burglary sentence. The State

explains it lacked admissible evidence immediately following Barraza's arrest to prove

unlawful possession of a controlled substance. When the State received a Washington

State Patrol Crime Lab report, DOC transferred Barraza to Franklin County jail, on

December 10, 2012 to face the unlawful possession charge. As noted, the Franklin

County court sentenced Barraza on January 22, 2013. Thus, Barraza's total time of

confinement "solely in regard to the offense for which [she was] being sentenced"­

unlawful possession-was from December 10,2012 to January 22, 2013.

RCW 9.94A.505(6) would thus entitle Barraza to credit for 44 days served.

                                        CONCLUSION

      We remand for resentencing.




                                            6

No.31606-8-II1
In re Postsentence Review ofBarraza


       As DOC acknowledges, Barraza, on remand, may elect to withdraw her plea.

"Where the parties have agreed to a sentence that is contrary to law, the defendant may

elect to withdraw [her] plea. While withdrawal may not return the defendant to the

precise status quo ante in every circumstance, it is the only remedy the court has authority

to impose." State v. Barber, 170 Wn.2d 854, 873,248 P.3d 494 (2011).

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

Washington Appellate Reports, but it will be filed for public record pursuant to

RCW 2.06.040.




WE CONCUR: 





                                             7

