Opinion
Nos. 37362-9-II; 38303-9-II.
February 18, 2009.
Appeals from a judgment of the Superior Court for Clark County, No. 00-1-02047-3, Robert L. Harris, J., entered January 24, 2008.
Affirmed by unpublished opinion per Hunt, J., concurred in by Penoyar, A.C.J., and Armstrong, J.
Christopher Maddox appeals the trial court's refusal to credit prison time he served in Oregon against his sentence for a crime he committed in Washington. He argues that because he served his Oregon sentence after imposition of his Washington sentence and because the Oregon trial court did not expressly order his Oregon sentence to run consecutively with his Washington sentence, under RCW 9.94A.589(3) and ORS 137.123(1), there is a presumption that the two sentences ran concurrently. We need not reach this argument because at the time Maddox served his sentence in Oregon, he had not served his Washington sentence, which had tolled while he was free from confinement after posting appeal bond. We affirm.
FACTS
Following a bench trial based on stipulated facts, a Washington trial court found Maddox guilty of unlawful possession of marijuana with intent to deliver and unlawful possession of Ecstasy with intent to deliver. The trial court also found that both crimes occurred within 1,000 feet of a school bus stop. On June 7, 2001, the trial court sentenced Maddox to confinement for 81 months. The following day, Maddox posted an appeal bond and was released from custody pending appeal.
While on an appeal bond, Maddox went to Oregon, where he committed other crimes. On May 31, 2002, the State of Oregon charged Maddox with 13 felony drug counts. An Oregon jury found him guilty of four of the 13 counts. Discussing Maddox's sentencing range during his Oregon sentencing, the State of Oregon informed the trial court: "[T]here's an appeal bond to be revoked. And at some point he will go there [Washington] and start serving his sentence after he gets done here." Exhibit 2 at 25. The parties and the Oregon court did not otherwise discuss any potential interplay between Maddox's Oregon and Washington sentences; nor was there any mention of concurrent versus consecutive sentences. On January 22, 2003, the Oregon trial court sentenced Maddox to a total of 73 months confinement; Maddox then served his sentence in Oregon.
About six months before Maddox's Oregon sentencing, on July 5, 2002, a Washington court had revoked his release on appeal bond, held him without bail, and referred him to the court that had tried and sentenced him. The next month, on August 6, 2002, the trial court increased Maddox's appeal bond to $150,000; Maddox again posted bail and was again released on August 8.
On January 30, 2003, the Washington trial court entered a bench warrant for Maddox's arrest. On October 25, 2007, the Washington arrest warrant was executed: Maddox was arrested, returned to Washington (Clark County), and held without bail.
In November 2007, Maddox moved the Washington trial court to treat his Washington sentence as concurrent with his Oregon sentence and to give him credit for time served in Oregon. The trial court denied his motion, finding:
Mr. Maddox, by posting bail and leaving the jurisdiction, basically was avoiding the time imposed by the Washington court and not honoring the authority of Washington court[s]. Giving credit for time served in another jurisdiction would subvert sentencing policy of the State of Washington. The legislature has not granted the courts this authority.
Clerk's Papers at 129. The trial court ordered Maddox to serve his remaining Washington judgment and sentence.
Maddox initially filed a personal restraint petition (PRP) with this court. On its own motion, this court consolidated the PRP with this appeal. A commissioner of our court originally considered Maddox's appeal as a motion on the merits under RAP 18.14, but then transferred it to a panel of judges for consideration.
ANALYSIS I. Washington and Oregon Sentences not Concurrent
Maddox first argues that because his Oregon sentence was imposed after his Washington sentence and because the Oregon trial court did not expressly order these sentences to run consecutively, under RCW 9.94A.589(3) and ORS 137.123(1), there is a presumption that they ran concurrently. We do not reach this argument because at the time Maddox was serving his sentence in Oregon, his Washington sentence had tolled under RCW 9.95.060.
RCW 9.95.060 provides that when a convicted defendant appeals his or her conviction and "is at liberty on bond pending the determination of the proceeding . . . credit on his or her sentence will begin from the date such convicted person is returned to custody." (Emphasis added.) Nonetheless, Maddox asserts that he should receive credit against his Washington sentence from the date when the Washington trial court revoked his release on appeal bond and held him without bail — July 5, 2002. But Maddox was no longer in custody in Washington a month later, when he posted bail and was again released on August 8.
Apparently Maddox still remained out of Washington custody as of January 30, 2003, when a Washington bench warrant issued, just seven days after his sentencing in Oregon. Thereafter, Maddox did not return to custody in Washington until October 25, 2007, when he was arrested on his Washington bench warrant, after he had completed his Oregon sentence.
It is undisputed that Maddox was not in custody in Washington both while he was released on appeal bond and while he was serving his Oregon sentence. During the times he was not in custody in Washington, his Washington sentence did not run. RCW 9.95.060. Rather, Maddox's Washington sentence was tolled while he served his Oregon sentence. Accordingly, the Washington trial court did not err in denying Maddox's motion to credit his time served in Oregon against his Washington sentence.
The trial court correctly noted, however, that Maddox could receive credit for the time he spent in jail awaiting trial in Washington and his jail time between July 5, 2002, and August 8, 2002, following revocation of his initial appeal bond and before he posted his new appeal bond.
II. No Washington Credit for Time Served in Oregon
Even if we reach the merits of Maddox's argument and assume, as he does, that under Oregon law his Oregon sentence should have run concurrently with his Washington sentence, he is not entitled to credit for his time served in Oregon. Under former RCW 9.94A.120(17) (2001), "credit for time served" has a fixed legal meaning which is time served "solely in regard to the offense for which the offender is being sentenced," State v. Watson, 63 Wn. App. 854, 860, 822 P.2d 327 (1992). Thus, the Washington sentencing court could credit Maddox for all confinement time served before his Washington sentencing only if that confinement was solely in regard to the offense for which he was being sentenced in Washington. The sentence that he served in Oregon for his Oregon convictions did not meet this criterion because that time was not served "solely," or even at all, for his Washington convictions.
All references to former chapter 9.94A RCW are to the versions of the statute in effect at the time of Maddox's crimes in 2001.
Contrary to Maddox's assertion, the Sentencing Reform Act does not authorize credit for time served on sentences for other offenses. Watson, 63 Wn. App. at 859. Clearly, while Maddox was serving his sentence in Oregon for the crimes he had committed in Oregon, he was not serving time for the offenses he had committed in Washington, the sentence in issue before us here. See State v. Davis, 69 Wn. App. 634, 636, 641, 849 P.2d 1283 (1993) (defendant serving Montana sentence for Montana robbery, transferred to Washington for trial for an earlier robbery in Washington — not entitled to credit against Washington sentence for time served on a Montana sentence).
Chapter 9.94A RCW.
The Washington court granted Davis credit "only for the pretrial time served on the [Washington] charges." Davis, 69 Wn. App. at 637. Previously affirming on appeal, we held that "[w]hen concurrent sentences are imposed, the defendant is not entitled to credit for time served on other sentences." Id. at 641.
Maddox did not begin to serve his Washington sentence immediately after pronouncement because he was released on an appeal bond. Thus, just as Davis did not begin serving his Washington sentence until after he had begun serving his Montana sentence, Maddox did not begin serving his Washington sentence until after he completed his Oregon sentence. And, as we previously noted, Maddox's confinement in Oregon had been solely for his Oregon conviction. Therefore, just as in Davis, Maddox was not entitled to credit against his Washington sentence for his time served in Oregon for his Oregon offenses.
III. Former RCW 9.94A.400 Inapplicable
Both Maddox and the State argue that former RCW 9.94A.400 applies. Maddox asserts that under former RCW 9.94A.400(3), his Oregon and Washington sentences are presumed to run concurrently because (1) he was not under sentence for a felony at the time the Washington court sentenced him, and (2) the Washington court's original sentencing order did not expressly order his Oregon and Washington sentences to run consecutively. The State argues that because Maddox was under sentence in Washington at the time he committed his felonies in Oregon, under former RCW 9.94A.400(2)(a), his Oregon and Washington sentences should have run consecutively. Both parties' arguments fail.
The parties cite the application of RCW 9.94A.589, the current version of former RCW 9.94A.400. Although we apply the statute in effect at the time Maddox's sentence was imposed because these two versions of the statute use identical language, using either version produces the same substantive effect.
The Supreme Court has clarified that former RCW 9.94A.400 "define[d] how the court [was] to sentence a person for a felony when that person [was] already under sentence for a different felony." State v. Yates, 161 Wn.2d 714, 783, 168 P.3d 359 (2007) (emphasis added). Thus, former RCW 9.94A.400(2) and (3) would have applied to Maddox's sentencing for a Washington felony conviction and sentence occurring after Maddox's 2001 Washington sentence; these sections did not, however, apply to his 2001 Washington sentence, the one at issue in this appeal.
V. No violation of Full Faith and Credit Clause
Finally, because Maddox had not yet served his Washington sentence when he began serving his time in Oregon, the Washington sentencing court's refusal to give him credit for time served in Oregon does not violate the full faith and credit clause. That clause requires every other court of the United States to accord another court's judgments the same credit, validity, and effect in as the state where it was pronounced. U.S. Const. Art. 4, § 1. But here, the Washington sentencing court did not refuse to enforce Maddox's Oregon judgment. Rather, it simply ruled that when Maddox was serving his Oregon sentence, he was not serving time under his Washington sentence.
In conclusion, Maddox is not entitled to credit his Oregon time served against his Washington sentence because his release on appeal bond deferred execution of his Washington sentence. Because Maddox served time in Oregon for only his Oregon offenses, he is not entitled to credit that time against his unserved Washington sentence. And because the Washington trial court was not refusing to enforce the Oregon judgment, it did not violate the full faith and credit clause. Accordingly, we affirm the trial court.
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.
ARMSTRONG, J. and PENOYAR, A.C.J., concur.