                                                                FILED
                                                            OCTOBER 15, 2019
                                                        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

STATE OF WASHINGTON,                           )         No. 36271-0-III
                                               )         (consolidated with
                     Respondent,               )         No. 36272-8-III)
                                               )
       v.                                      )
                                               )         UNPUBLISHED OPINION
BRIAN CHARLES HUGHES,                          )
                                               )
                     Appellant.                )

       PENNELL, J. — Brian Hughes appeals his sentences for two counts of unlawful

possession of a controlled substance and one count of identity theft. He makes two

assignments of error: First, Mr. Hughes claims the trial court erroneously imposed de

facto consecutive sentences; second, he asserts the trial court’s legal financial obligation

(LFO) orders fail to comport with recent statutory changes. The first issue is moot and

therefore not amenable to an appellate remedy. With respect to the second issue, we

remand with instructions to strike only the nonrestitution interest provisions from each

judgment and sentence under review in this consolidated appeal.
Nos. 36271-0-III; 36272-8-III
State v. Hughes


                                    BACKGROUND

       In two separate proceedings, Brian Hughes pleaded guilty to two counts of

possession of a controlled substance (methamphetamine) and one count of first degree

identity theft. His pleas were pursuant to a plea agreement, whereby the State agreed to

dismiss several additional counts and recommend a residential drug offender sentencing

alternative (DOSA).

       The trial court accepted Mr. Hughes’s guilty pleas and ordered the Department of

Corrections (DOC) to screen Mr. Hughes for a residential DOSA. The DOC determined

Mr. Hughes would be a good candidate for a residential DOSA. However, because the

standard ranges for Mr. Hughes’s methamphetamine convictions did not exceed one year,

the DOC claimed Mr. Hughes was only eligible for a DOSA with respect to his identity

theft conviction, which carried a standard range of 15-20 months.

       At sentencing, Mr. Hughes requested an exceptional sentence downward such that

he would be given credit for time served on the methamphetamine convictions and begin

serving his residential DOSA immediately. The State disagreed with this approach. It

claimed time served for a residential DOSA did not qualify for credit or constitute

incarceration or confinement. The State recommended the court impose six-month

concurrent sentences, with credit for time served, for the methamphetamine convictions


                                             2
Nos. 36271-0-III; 36272-8-III
State v. Hughes


and then the residential DOSA sentence for the identity theft conviction. The trial court

accepted the State’s recommendation. It also imposed a $200 criminal filing fee in each

of Mr. Hughes’s cases.

       The net effect of the trial court’s sentencing decision was that Mr. Hughes spent

approximately 70 days in custody on the methamphetamine convictions before being

released into inpatient treatment for his residential DOSA sentence.

       Mr. Hughes filed timely notices of appeal of his sentences. Since the time of

sentencing, Mr. Hughes finished both his jail time and residential treatment. He is now

serving a 24-month term of community custody.

                                       ANALYSIS

De facto consecutive sentences

       As the parties agree, Mr. Hughes’s sentences were implemented in an illegal

manner. Mr. Hughes was sentenced for multiple felony counts during the same

proceeding. Under the circumstances of his case, the trial court was required to impose

concurrent sentences. RCW 9.94A.589(1)(a). Because time spent on a residential DOSA

is equivalent to jail or prison time, see RCW 9.94A.030(53) and In re Postsentence

Review of Bercier, 178 Wn. App. 148, 150-51, 313 P.3d 491 (2013), imposition of current

sentences meant Mr. Hughes should have been released to treatment immediately


                                             3
Nos. 36271-0-III; 36272-8-III
State v. Hughes


following sentencing. By delaying release into treatment until after expiration of the non-

DOSA-eligible counts, the trial court subjected Mr. Hughes to impermissible de facto

consecutive terms. See State v. Smith, 142 Wn. App. 122, 127-29, 173 P.3d 973 (2007). 1

       While the parties agree Mr. Hughes’s sentences were implemented in an illegal

manner, they disagree as to whether he is eligible for relief on appeal. The State claims

that because Mr. Hughes has finished his jail time and successfully completed residential

treatment, we cannot provide effective relief on appeal and the trial court’s error is moot.

Mr. Hughes counters the issue is not moot because he may be at risk of not receiving

credit for time served if his DOSA is revoked in the future. He further argues there is a

continuing and substantial public interest in resolving the merits of appeal.

       We would be sympathetic to Mr. Hughes’s position if there were something in the

written record that required correction. But Mr. Hughes’s judgments and warrants of

commitment state the sentences for all three counts of conviction are to run concurrently.

There is, therefore, nothing we can order on remand. While it is possible the issue of

credit could arise in the future, the current record is already sufficient to permit Mr.


       1
         In addition, the trial court’s disposition was inconsistent with our recent decision
in In re Postsentence Review of Hardy, 9 Wn. App. 2d 44, 442 P.3d 14 (2019). Because
Mr. Hughes was eligible for a DOSA sentence, his sentence should not have been divided
up according to DOSA-eligible and DOSA-ineligible counts. Instead, he should have
received one sentence and custody credit for residential treatment time.

                                              4
Nos. 36271-0-III; 36272-8-III
State v. Hughes


Hughes to accurately seek credit for time served. Finally, our decisions in Bercier and

Hardy adequately address any public interest in the merits of Mr. Hughes’s DOSA

arguments.

LFOs

       Citing 2018 amendments to Washington’s LFO laws 2 and State v. Ramirez, 191

Wn.2d 732, 426 P.3d 714 (2018), Mr. Hughes argues the trial court improperly imposed

the $200 criminal filing fees based on his indigence. See RCW 36.18.020(2)(h). Under

the terms of the LFO amendments, a $200 criminal filing fee “shall not be imposed on a

defendant who is indigent as defined in RCW 10.101.010(3)(a) through (c).” Id.

       We decline to reach the filing fee issue because it was not preserved. RAP 2.5(a).

Mr. Hughes was sentenced over a month after the effective date of the 2018 LFO

amendments. Yet he did not object to the trial court’s imposition of the filing fees.

The record on appeal does not clarify whether Mr. Hughes was indigent at the time of

sentencing as defined by RCW 10.101.010(3)(c). This issue was not adequately preserved

for review. 3


       2
         LAWS OF 2018, ch. 269.
       3
         Because Mr. Hughes has not established discretionary LFOs should be waived on
the basis of indigence, we do not address his claim that the court cannot assess collection
costs under RCW 36.18.190. We note this statute was not included in the 2018 LFO
amendments.

                                             5
Nos. 36271-0-III; 36272-8-III
State v. Hughes


       Mr. Hughes also objects to language in each judgment and sentence requiring

collection of interest on LFOs. Washington’s new LFO law provides that, as of June 7,

2018, interest shall not accrue on nonrestitution LFOs. RCW 10.82.090. Given this new

provision, it is unclear whether the trial court’s judgments actually require collection of

interest in Mr. Hughes’s cases. Nevertheless, to eliminate the possibility of confusion, we

remand for the limited purpose of striking the provisions in Mr. Hughes’s judgments

imposing interest on nonrestitution LFOs.

                                     CONCLUSION

       We remand with instructions to strike the provisions in each judgment and

sentence imposing interest on nonrestitution LFOs. Having determined Mr. Hughes’s

challenge to imposition of his sentences is moot, the matter is otherwise affirmed.

       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.

                                           _________________________________
                                           Pennell, J.
WE CONCUR:


______________________________             _________________________________
Lawrence-Berrey, C.J.                      Fearing, J.


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