Opinion
No. 90690–4.
02-24-2015
In Re Post–Sentence Petition of Dominic Lee COMBS.
RULING DENYING REVIEW
¶ 1 The Department of Corrections petitioned the Court of Appeals for review of Dominic Combs's sentence that committed him to the custody or jurisdiction of the department. See RAP 16.18, RCW 9.94A.585(7). The Court of Appeals determined the trial court order erroneously allowed 160 days credit for time served upon revocation of Mr. Combs's drug offender sentencing alternative (DOSA) sentence because credit should not have been granted for 47 days during which Mr. Combs failed to report to his treatment facility and 42 days when he was in jail on burglary charges, and remanded for the department to calculate any time served credits consistent with its opinion. In re Post–Sentence Review of Combs, 176 Wash.App. 112, 308 P.3d 763 (2013), reconsideration denied (July 28, 2014). Mr. Combs now seeks this court's discretionary review. RAP 16.18(g), RAP 13.5A(a)(2). In ruling on a motion for discretionary review of a postsentence petition this court applies the considerations set forth in RAP 13.4(b). RAP 13.5A(b). Under these considerations review will be accepted by this court only if the decision of the Court of Appeals is in conflict with a decision of this court or another decision of the Court of Appeals, involves a significant question of law under the Constitution of the State of Washington or of the United States, or involves an issue of substantial public interest that should be determined by this court.
¶ 2 Additionally, although no party has addressed the question, it appears this particular matter is moot since Mr. Combs's sentence at issue would have long since expired. The expiration of a sentence renders a case moot “if a court can no longer provide effective relief.” In re Cross, 99 Wash.2d 373, 376–77, 662 P.2d 828 (1983). Ordinarily, this court will not consider a question that has become moot, though it may do so when matters of continuing and substantial public interest that are likely to recur are involved. Sorenson v. City of Bellingham, 80 Wash.2d 547, 558, 496 P.2d 512 (1972). When determining the degree of public interest involved, courts consider (1) the public or private nature of the question presented, (2) the desirability of an authoritative determination for the future guidance of public officers, and (3) the likelihood of future recurrence of the question. Id.; In re Mines, 146 Wash.2d 279, 285, 45 P.3d 535 (2002).
¶ 3 Mr. Combs pleaded guilty to methamphetamine possession in June 2011, and the sentencing court originally imposed a 24–month DOSA sentence that required participation in a residential chemical dependency treatment for a period of three to six months. However, nine days after he was admitted to a residential treatment facility Mr. Combs absconded from treatment. While in the community he was charged with second degree burglary, and held in jail on that charge from September 8 to October 20, 2011. The sentencing court revoked the DOSA sentence, and on October 19, 2011, imposed a sentence of 18 months confinement and 12 months community custody. The court credited Mr. Combs with 160 days as time served, a credit to which the State had agreed before Mr. Combs stipulated to revocation of his DOSA. This credit for time served apparently was comprised of 63 days Mr. Combs served in jail between his arrest for methamphetamine possession and his DOSA sentencing; 8 days in treatment under the DOSA sentence; 47 days when he was under the DOSA sentence but was in the community after absconding from the treatment facility; and 42 days when he was in jail after being charged with burglary. The department informed the court, the prosecutor, and Mr. Combs that it believed the credit for time served was miscalculated, and requested the prosecutor to ask the court to reduce the time served credit by the 47 days Mr. Combs was in the community after absconding from treatment and the 42 days he was in jail after being charged with burglary. When the prosecutor declined to seek recalculation of the credit for time served, the department petitioned the Court of Appeals for post-sentence review. Combs, 176 Wash.App. at 115–16, 308 P.3d 763.
¶ 4 Mr. Combs first urges that he raises an important constitutional issue of whether an offender jailed for both a DOSA violation and another criminal charge is entitled to have time served credited to his post-revocation DOSA sentence when the other criminal charge is dismissed. See Reanier v. Smith, 83 Wash.2d 342, 352–53, 517 P.2d 949 (1974) (considerations of due process, equal protection and the prohibition against multiple punishments dictate that presentence jail time be credited against maximum and mandatory minimum terms). But the record does not show that Mr. Combs was confined in jail on the DOSA violation. His citations to the record do not support this factual assertion, and the department's answer points out affirmative statements in its records which indicate he was jailed only on the burglary charge. This issue does not warrant review, particularly in a matter that is technically moot.
¶ 5 Next, Mr. Combs urges that whether the sentencing court has the authority to give credit for time served is an issue of substantial public importance. He posits scenarios that may arise where “the sentencing judge is powerless to give credit for time served” and “[t]he offender continues to remain in illegal confinement past the standard range sentence available while he waits for DOC to get around to calculating credit for time served.” Additionally, he contends the Court of Appeals decision will inhibit the ability of offenders and prosecutors to reach agreements in which the offender admits DOSA violations and agrees to revocation if the prosecutor agrees to the calculation of the credit for time served that will be presented to the court. But these suggested impacts posit situations where the department is not cooperative and timely in providing its calculations. I am mindful of this court's caution that the actual benefit to the public interest in reviewing the moot case must outweigh the court's ordinary course of refraining from providing an essentially advisory opinion. Hart v. Dep't of Soc. & Health Servs., 111 Wash.2d 445, 451, 759 P.2d 1206 (1988). I cannot conclude this issue presents “a continuing question of great public importance” that justifies addressing the issue in a moot case. Sorenson v. City of Bellingham, 80 Wash.2d at 558, 496 P.2d 512.
¶ 6 Finally, Mr. Combs argues that the Court of Appeals erred when it viewed the department's petition as raising a legal issue rather than a factual issue. RCW 9.94A.585(7) restricts review to errors of law. The Court of Appeals concluded the petition raised questions of statutory authority and application of the separation of powers doctrine that were purely legal issues, and a review of its opinion reflects that legal rather than factual errors were addressed. This issue is not one of substantial public interest that should be determined by this court, particularly in a case that was rendered moot by the expiration of the sentence even before the motion for discretionary review was filed.
¶ 7 The motion for discretionary review is denied.