Opinion
Nos. 62216-1-I consolidated with 62217-0-I.
September 21, 2009.
Appeals from a judgment of the Superior Court, King County, No. 99-1-09103-1, Cheryl B. Carey, J., entered July 23, 2008.
Affirmed by unpublished opinion per Appelwick, J., concurred in by Cox and Lau, JJ.
Larson appeals the court's imposition of 300 days confinement under RCW 9.94A.634(3)(c) for five sentence condition violations. RCW 9.94A.634(3)(c) authorizes up to 60 days per violation, and the total period of confinement may not exceed the statutory maximum of the underlying conviction. Because the statutory maximum for Larson's underlying convictions was five years, we affirm.
FACTS
Larson was sentenced on March 20, 2000, for felony harassment. The court imposed a standard range sentence of 90 days of confinement. In addition, the court ordered 24 months of community supervision with various conditions.
The court determined the standard range was 1-3 months, based on an offender score of 0 and a seriousness level of III.
Also on March 20, 2000, Larson was sentenced for assault in the third degree. The court imposed a standard range sentence of 4 months confinement, to be served concurrently with the felony harassment sentence. The court attached various conditions to this sentence as well.
The court determined the standard range was 3-8 months, based on an offender score of 1 and a seriousness level of III.
Each judgment and sentence informed Larson that "[v]iolations of the conditions or requirements of this sentence are punishable for a period not to exceed sixty (60) days of confinement for each violation."
On August 12, 2000, the Department of Corrections (DOC) issued a notice of violation for both sentences, including failure to report to the DOC, failure to make payments toward his legal financial obligations, failure to enter a domestic violence treatment program, and failure to obtain a substance abuse evaluation. On March 12, 2001, the DOC issued a supplemental notice of violation for both sentences, for violating the no contact order when Larson contacted Diane Washington, the victim of both crimes.
On July 10, 2008, the State filed a notice of sentencing modification hearing and a motion to show cause for both cases. During the modification hearing on July 22, 2008, Larson admitted all five violations. The State requested and the court imposed 60 days per violation, for a total of 300 days, pursuant to RCW 9.94A.634.
The long delay before the sentence modification hearing was a result of a sentence Larson served in Idaho for an assault on Washington.
Larson appealed both cases. We consolidated his appeals.
DISCUSSION
When an offender violates any requirement of a sentence, the trial court retains broad discretion to modify the sentence and/or impose additional punishment. RCW 9.94A.634(1); State v. Woodward, 116 Wn. App. 697, 703, 67 P.3d 530 (2003). A trial court abuses its discretion if its decision is manifestly unreasonable or is based on untenable grounds or untenable reasons. State v. Mason, 160 Wn.2d 910, 922, 162 P.3d 396 (2007), cert. denied, 128 S. Ct. 2430, 171 L. Ed. 2d 235 (2008).
RCW 9.94A.634(1) provides that "[i]f an offender violates any condition or requirement of a sentence, the court may modify its order of judgment and sentence and impose further punishment." The State has the burden to show noncompliance by a preponderance of the evidence. RCW 9.94A.634(3)(c). If the court determines a violation has occurred, "it may order the offender to be confined for a period not to exceed sixty days for each violation." RCW 9.94A.634(3)(c).
Larson argues that the 300 days of confinement the trial court imposed exceeds the statutory maximum for the underlying offenses, as defined by Blakely v. Washington, thereby violating his right to due process and to a jury trial. 542 U.S. 296, 303-04, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004).
I. Due Process
In Morrissey v. Brewer, the Court found that the Fourteenth Amendment guarantees only minimum due process in the context of a parole revocation hearing, because the process involves deprivation of a conditional liberty. 408 U.S. 471, 480-89, 92 S. Ct. 2593, 33 L. Ed. 2d 484 (1972). Our Supreme Court has noted that no meaningful difference exists between sentence modification hearings and parole revocation hearings for purposes of determining what rights under the Sixth and Fourteenth Amendments apply in these instances — both proceedings involve the potential deprivation of a conditional liberty. State v. Abd-Rahmaan, 154 Wn.2d 280, 288, 291, 111 P.3d 1157 (2005) (holding that the right to confrontation under Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004), does not apply in sentence modification proceedings).
Larson was afforded minimum due process. He received written notice of the claimed violations of his sentence, knew of the evidence against him, and had the opportunity to be heard and present evidence in front of a court of law. Mathews v. Eldridge, 424 U.S. 319, 333-34, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976); Abd-Rahmaan, 154 Wn.2d at 288-89 (citing Morrissey, 408 U.S. at 480). We find no due process violation.
II. Sixth Amendment
The available period of confinement for sentence violations is limited by the maximum term of the underlying conviction. State v. McDougal, 120 Wn.2d 334, 352, 841 P.2d 1232 (1992). However, Larson asserts that the meaning of "maximum term" in this context must have the same meaning as it does in Blakely v. Washington, 542 U.S. at 303-04.
Blakely guarantees that, if a defendant is to be sentenced to more than the statutory maximum, which in this circumstances is defined as "the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant," the Sixth Amendment requires that a jury find the facts that support a sentence beyond the statutory maximum. 542 U.S. at 303-05 (citing Apprendi v. New Jersey, 530 U.S. 466, 488, 120 S. Ct. 2348, 147 L. Ed. 2d. 435 (2000)). However, the strictures of the Sixth Amendment do not apply in postconviction settings such as sentence modification hearings; to the contrary, by its own terms, the guarantee to a jury trial applies only to criminal prosecutions. Abd-Rahmaan, 154 Wn.2d at 288.
The defendant may also admit to the facts that support a sentence beyond the statutory maximum. Blakely, 542 U.S. at 303-04.
Therefore, the meaning of statutory maximum in a sentence modification proceeding is defined by looking to RCW 9A.20.021, rather than the high end of the standard range under the Sentencing Reform Act of 1981. McDougal, 120 Wn.2d at 352; State v. Toney, 149 Wn. App. 787, 795-96, 205 P.3d 944 (2009) (explaining that "statutory maximum" means not the high end of the presumptive standard sentence range, but the maximums as provided in RCW 9A.20.021).
Chapter 9.94A RCW.
The statutory maximum for Larson's crimes, felony harassment and third degree assault, both class C felonies, is 5 years. RCW 9A.20.021(1)(c) (providing that no person convicted of a class C felony shall be punished in excess of five years confinement in a state correctional institution); 9A.36.031(2) (defining third degree assault as a class C felony); 9A.46.020(2)(b) (defining felony harassment as a class C felony). The court chose to impose the maximum punishment for each of Larson's five sentence violations, resulting in 300 days, in addition to the four months already served. RCW 9.94A.634(3)(c).
The court in McDougal approved a period of confinement of 450 days for sentence violations, noting that the maximum penalty for the underlying offense of a class C felony was 5 years. 120 Wn.2d at 336, 352. Just as the trial court decided in Larson's proceeding, the court in McDougal imposed confinement in excess of the standard range for the underlying offense, but well under the statutory maximum as defined in RCW 9A.20.021. Id.
The trial court here did not exceed the statutory maximum, acting well within its discretion.
We affirm.
WE CONCUR.