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In re Town

The Court of Appeals of Washington, Division One
Oct 22, 2007
141 Wn. App. 1012 (Wash. Ct. App. 2007)

Opinion

No. 59380-3-I.

October 22, 2007.

Petition for relief from personal restraint. Granted by unpublished per curiam opinion.


Petitioner Randy Town seeks relief from community placement conditions imposed following his guilty plea to two counts of statutory rape in King County Superior Court No. 90-1-01070-4.SEA. Town contends that the trial court lacked authority to impose community placement at the time of the commission of his crimes. We agree, and grant Town's petition.

We also deny the State's motion to strike Town's supplemental reply brief. Although the order appointing counsel and requesting additional briefing did not specifically request a reply, the reply addresses arguments raised in the supplemental response briefs on the issue raised by the court. RAP 12.1(b).

In September 1990, Town pleaded guilty to two counts of first degree statutory rape in exchange for the State's agreement to dismiss a third charged count and to forgo filing additional charges. The State charged count I based on incidents occurring between September 11, 1985 and September 11, 1987, while count II covered incidents occurring between October 1, 1983 and December 1983. In his guilty plea statement, Town acknowledged that the State would recommend "300 months incarceration on each count (exceptional sentence) terms to run concurrently . . . 12 months comm. placement; sexual deviancy therapy living work situation approved by C.C.O."

The trial court followed the State's recommendation as described in the plea agreement, imposed an exceptional sentence of 300 months under the Sentencing Reform Act ("SRA") for both counts, and ordered a one-year term of community placement on both counts including the condition that "residence work to be approved by CCO." Then on November 2, 1990, the trial court entered a "Judgment and Sentence Ct II (Nunc Pro Tunc)" stating "[Ct I is sentenced separately (SRA)]" and sentencing Town on count II to a maximum term of life and a minimum term of 300 months. The court also signed a separate order fixing a minimum term of 300 months.

Town appealed the November 2, 1990 judgment nunc pro tunc, arguing that it was void because he was not present at sentencing and the trial court lacked authority to enter judgment while the appeal was pending. The parties agreed on appeal that Town was informed that he would receive a determinate sentence under the SRA on both counts. The State conceded that the trial court exceeded its authority by entering the judgment nunc pro tunc and that "substantial questions exist" regarding the voluntariness of Town's plea. This Court accepted the State's concessions, reversed the judgment nunc pro tunc and remanded the case to the trial court to allow Town to choose between withdrawal of the guilty plea and specific performance of the plea bargain under State v. Miller.

On August 5, 1993, the trial court entered a "Judgment and Sentence — Count II" again including the statement "(Count I is sentenced separately)," adjudging Town "guilty of the crime of Statutory Rape 1°, Count II" and sentencing him to imprisonment "for a maximum term of not more that 300 months or twenty-five (25) years . . . and a minimum term to be fixed at 300 months or twenty-five (25) years by separate order." Also on that day, the trial court signed an "Order Fixing Minimum Term" setting the minimum term for Count II as 300 months.

On February 24, 1998, the trial court entered an "Order Clarifying Judgment and Sentence, Count II, and Revoking Order Fixing Minimum Term." The order states that after remand following his appeal, Town chose "to demand specific performance of the plea bargain by receiving a determinate sentence on both counts I and II." The order revokes the August 1993 order setting minimum term and states, "the Indeterminate Sentence Review Board shall have no jurisdiction over Mr. Town on Count II of this cause number," and "The Judgment and Sentence — Count II, dated August 5, 1993, remains in effect and is not changed by this order."

Town now contends that the trial court lacked statutory authority to impose community placement, including the condition regarding residence and work approval, which is currently preventing his release. The State concedes that community placement was not authorized by statute at the time Town committed his crimes. The State's concession is well-taken as community placement was not authorized for such offenses until 1988. Thus, the 1990 judgment and sentence including community placement for offenses Town committed before 1988 is invalid on its face and consideration of the merits of his petition is not barred by the one-year time limit of RCW 10.73.090.

See former RCW 9.94A.120(8)(a)(1988).

The State and the Department of Corrections nonetheless argue that 1) the plea bargain is indivisible under State v. Turley and State v. Bisson, 2) Town agreed to the imposition of community placement by electing to enforce the terms of the plea bargain following remand, and 3) he waived any ex post facto claim by choosing the illegal sentence. The record does not support these arguments.

Although the plea statement and the original judgment and sentence covered both counts, the trial court divided the two counts in November 1990 and repeatedly stated that count I was sentenced separately. The appeal involved only the count II judgment and sentence nunc pro tunc. And following remand, the trial court entered, and later clarified, a new separate judgment and sentence for count II. The count II judgment and sentence dated August 1993, which does not include any reference to community placement, was never appealed and is therefore the only valid judgment and sentence for count II.

Also, despite this court's direction on remand for the trial court to give Town the opportunity to choose between withdrawing his plea and specific performance of the plea bargain, the record reveals a different result. In 1993, the trial court simply gave Town an indeterminate sentence on count II of the same length as that imposed in count I without including any of the conditions listed in the plea statement or the original judgment and sentence. Nothing in the 1993 count II judgment and sentence refers to the details of the plea agreement or to community placement. Nothing in the record indicates that the community placement term imposed in count I was discussed or mentioned when Town was given the opportunity to choose his remedy under Miller after remand.

Then in 1998, the trial court recognized that the point of the appeal was that Town was originally told he would receive SRA sentences on both counts and simply ordered that the ISRB would have no jurisdiction on count II. Again, neither the 1993 count II judgment and sentence nor the 1998 order modifying it were appealed. Based on this record, we reject the theory that Town should not be allowed to challenge the imposition of community custody on count I following his choice of remedy under Miller for the error in count II.

RAP 16.4(a) authorizes us to grant appropriate relief where the petitioner's restraint is unlawful. Because we hold that DOC cannot lawfully impose community placement on Town for either count under this cause number, we grant Town's PRP and direct DOC to transfer him to community custody when he is otherwise eligible, without the need for a preapproved residence and work arrangement.

Petition granted.


Summaries of

In re Town

The Court of Appeals of Washington, Division One
Oct 22, 2007
141 Wn. App. 1012 (Wash. Ct. App. 2007)
Case details for

In re Town

Case Details

Full title:In the Matter of the Personal Restraint of RANDY LEE TOWN, Petitioner

Court:The Court of Appeals of Washington, Division One

Date published: Oct 22, 2007

Citations

141 Wn. App. 1012 (Wash. Ct. App. 2007)
141 Wash. App. 1012