Opinion
Nos. 51314-1-I Consolidated with, 52126-8-I
Filed: August 23, 2004 UNPUBLISHED OPINION
Appeal from Superior Court of King County. Docket No: 02-1-06907-6. Judgment or order under review. Date filed: 10/07/2002. Judge signing: Hon. Robert Alsdorf.
Counsel for Appellant(s), Nielsen Broman Koch Pllc, Attorney at Law, 1908 E Madison St, Seattle, WA 98122.
David Bruce Koch, Attorney at Law, 1908 E Madison St, Seattle, WA 98122.
Counsel for Respondent(s), Carla Barbieri Carlstrom, King Co Pros Office, W 554, 516 3rd Ave, Seattle, WA 98104-2390.
Prosecuting Atty King County, King County Prosecutor/appellate Unit, 1850 Key Tower, 700 Fifth Avenue, Seattle, WA 98104.
Catherine Marie McDowall, King County Prosecutor's Office, 516 3rd Ave, Seattle, WA 98104-2390.
When a trial court imposes a suspended sentence under RCW 9.92.060, it must establish a definite termination date for the suspended sentence, which must be set no later than the time the original sentence would have elapsed. In each case presented here, the trial court imposed an original sentence that included two consecutive 12-month terms of imprisonment. Thus, in each case the original sentence would have elapsed 24 months from the date of sentencing. The trial court erred by setting a termination date for the suspended sentence that was more than 24 months from the date of sentencing.
FACTS 1. Tillman Farr
Farr entered an Alford plea to two misdemeanor counts. The trial court imposed a sentence of 12 months of imprisonment on each count, to be served consecutively. But the court suspended the sentence under RCW 9.92.060 on the conditions that (1) Farr concurrently serve five months in jail on each count; and (2) Farr would be under probation, the termination of which was set at 24 months from the sentencing date.
North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970).
2. Larry Gudgel
Gudgel entered an Alford plea to two misdemeanor counts. The trial court imposed a sentence of 12 months of imprisonment on each count, to be served consecutively. But the court suspended the sentence under RCW 9.92.060 on the conditions that (1) Gudgel serve two consecutive two-month terms in jail, one for each count; and (2) Gudgel would be under probation, the termination of which was set at 48 months from the sentencing date. Several times after sentencing, Gudgel violated various conditions of his supervision. These violations prompted the trial court to imprison Gudgel for several short periods, during which his probation was tolled. On April 4, 2003, the trial court finally revoked Gudgel's suspended sentence on count one.
ANALYSIS
Because these two cases involve an identical issue, the court consolidated them for the purpose of issuing a single opinion. At issue in both cases is whether, under a suspended sentence imposing consecutive 12-month terms of confinement for two misdemeanor counts, RCW 9.92.064 authorizes the imposition of two consecutive 12-month periods of probation.
`In the case of a person granted a suspended sentence under the provisions of RCW 9.92.060, the court shall establish a definite termination date for the suspended sentence. The court shall set a date no later than the time the original sentence would have elapsed and may provide for an earlier termination of the suspended sentence. Prior to the entry of an order formally terminating a suspended sentence the court may modify the terms and conditions of the suspension or extend the period of the suspended sentence.' RCW 9.92.064.
Appellants would have the court construe RCW 9.92.064 to mean that regardless of how many consecutive one-year terms of imprisonment are imposed on a misdemeanant, probation may not be imposed for more than one year. Stated another way, appellants contend that multiple one-year periods of probation may not be imposed to run consecutively; rather, they may only run concurrently. But neither the text of the statute nor the cases that have applied it support this statutory construction.
The pivotal language in the statute reads: `[T]he court shall establish a definite termination date for the suspended sentence. The court shall set a date no later than the time the original sentence would have elapsed. . . .' This language is not ambiguous. The words `original sentence' refer to the sentence the entire sentence originally imposed by the trial court. Here, the sentence in each case included two consecutive 12-month terms of imprisonment. Thus, in each case the original sentence spanned a total of 24 months.
Under RCW 9.92.064, `[a] sentence could be suspended and probation imposed only for the period of time of the sentence which was actually imposed and thereupon suspended.' Consequently, the termination date for probation should have been set in each case no later than 24 months after sentencing. In Farr's case, the trial court set the probation termination date exactly 24 months from the date of sentencing, thus his sentence did not violate RCW 9.92.064. In Gudgel's case, however, the trial court set the probation termination date exactly 48 months from the date of sentencing. His sentence, therefore, did violate RCW 9.92.064, and the State concedes this on page five of its brief.
See State v. Monday, 85 Wn.2d 906, 908, 540 P.2d 416 (1975) (construing RCW 9.92.064 and analogizing it to RCW 9.95.210).
Neither Farr nor Gudgel explain why the statute limits probation to one year in cases where a sentence includes two consecutive 12-month terms of imprisonment. Each defendant would have the court disregard the fact that his original sentence provided for a total of 24 months of imprisonment. They implicitly urge the court to instead interpret the word `sentence,' as it is used in chapter 9.92 RCW, to mean the length of imprisonment for a single misdemeanor a term which may not exceed one year. But this interpretation would be incorrect.
The appellants' misapprehension of the statute seems to be caused by their conflation of two distinct concepts: a sentence, and a term of imprisonment. As in these cases, a single sentence may impose more than one term of imprisonment, and in the sentence the court may order the terms of imprisonment to be served either consecutively or concurrently. Contrary to what the appellants contend, a sentence's length comprises the total duration of consecutively-ordered terms of imprisonment. Thus, a sentence elapses when the last consecutively-ordered term of imprisonment elapses.
See RCW 9.94A.190(1) (`A sentence that includes a term or terms of confinement. . . .').
The appellants mistakenly rely on State v. Monday, in which the original sentence provided only for a single, one-year term of imprisonment. In Monday, our Supreme Court concluded that probation was limited to one year where the sentence actually imposed and thereafter suspended was also one year. Because the facts of Monday did not allow for the possibility that more than one year of probation could be imposed, that case offers no support for the appellants' proposition that RCW 9.92.064 always limits probation to a maximum of one year.
85 Wn.2d 906, 540 P.2d 416 (1975).
Monday, 85 Wn.2d at 908.
As mentioned above, the State concedes error in Gudgel. Without tolling, Gudgel's probation should have terminated 24 months after sentencing; i.e., on August 25, 2002. The record shows, however, that beginning on November 6, 2002, this period was tolled for 421 days because at times Gudgel failed to comply with various conditions of his supervision.
As of November 6, 2002, Gudgel had served more than 365 days of probation, which means that he had completed the 12-month period of probation that should have been imposed for count one of his suspended sentence. Consequently, and as the State concedes, the trial court's order revoking Gudgel's suspended sentence should have affected only count two of his suspended sentence. But the briefing by both parties fails to indicate what change, if any, would result if the trial court thus modified its revocation order.
Therefore, although it may be moot as stated by counsel at oral argument, we remand Gudgel with instructions to modify the judgment and sentence with regard to the probation termination date, to recalculate the correct probation termination date in light of the days tolled, and to reconsider and modify as necessary its order revoking Gudgel's suspended sentence.
The judgment and sentence in Farr is affirmed.
ELLINGTON and AGID, JJ., concur.