Opinion
No. 37900-7-II.
September 15, 2009.
Appeal from the Superior Court, Pierce County, No. 07-1-05722-8, John R. Hickman, J., entered July 3, 2008.
Affirmed by unpublished opinion per Quinn-Brintnall, J., concurred in by Bridgewater and Armstrong, JJ .
Thomas Howse appeals his sentence for failure to register as a sex offender. Howse argues that the sentencing court exceeded its statutory authority by sentencing him to 43 months confinement and 36 to 48 months of community custody because (1) the statutory maximum for this class C felony is 5 years (60 months), RCW 9A.20.021(1)(c); (2) if he served 43 months of confinement and 36 to 48 months of community custody, the sentence range is 79 to 91 months, in violation of the 60-month statutory maximum; and (3) the court's delegation of sentencing authority to the Department of Corrections (DOC) violates the separation of powers doctrine. Howse also argues that he received ineffective assistance of counsel when his attorney failed to object to the allegedly unlawful sentence. The State (1) agrees that the maximum sentence authorized for Howse's conviction is five years; (2) argues that the judgment and sentence remedies this issue by stating that "under no circumstances shall the total term of confinement plus the term of community custody actually served exceed the statutory maximum for each offense" (Clerk's Papers at 45); (3) argues that the legislature did not violate the separation of powers doctrine by delegating discretionary authority to the DOC; and (4) argues that Howse received effective assistance of counsel. We affirm.
FACTS
Howse has three prior convictions for first degree child molestation and one prior conviction for attempted first degree child molestation. Thus, Howse is a sex offender required to register with the Pierce County Sheriff's Department under RCW 9A.44.130. Howse properly registered in January 2003, June 2006, and May 2007. He was in custody from June 2007 to October 1, 2007, returned to jail on October 2, and was released the next day. Howse knew that he was required to check in with his community corrections officer, Vanessa Ryder, and to register within 24 hours of his release. Howse failed to check in, and Ryder obtained a warrant for his arrest. Howse called Ryder on October 5, and she told him (1) that she would have the warrant quashed if he came to her office, and (2) he must register at the sheriff's office and return to her office by October 9 with proof of registration. Howse reported to Ryder that day, and Ryder quashed the arrest warrant. Howse alleged that he went to the sheriff's office later that day to register. However, Howse (1) could not verify that he filled out the registration documents, (2) did not return to Ryder's office with proof of registration, and (3) was not surprised that he was later arrested for failure to register. The Pierce County Sheriff's office has no record of Howse's alleged registration.
The State charged Howse with failure to register as a sex offender on November 8, 2007. At a bench trial, the court found Howse guilty as charged. It is undisputed that Howse's offender score is 9+, his standard sentencing range is 43 to 57 months, and the statutory maximum for this crime is 5 years.
The sentencing court sentenced Howse to 43 months of confinement, followed by 36 to 48 months of community custody as required under former RCW 9.94A.850 (2005) and former RCW 9.94A.715 (2006), for a potential maximum total of 91 months of punishment.
Howse appeals his sentence.
analysis
A defendant may challenge an illegal or erroneous sentence for the first time on appeal. State v. Bahl, 164 Wn.2d 739, 744, 193 P.3d 678 (2008) (citing State v. Ford, 137 Wn.2d 472, 477, 973 P.2d 452 (1999)). A trial court may impose a sentence only as authorized by statute. In re Pers. Restraint of Tobin, 165 Wn.2d 172, 175, 196 P.3d 670 (2008).
Howse argues that his sentence violates former RCW 9.94A.505(5) (2006) by potentially imposing a term of confinement and community custody that exceeds the five-year statutory maximum for his offense. We disagree.
The Washington Supreme Court recently resolved this issue in In re Personal Restraint of Brooks, ___ Wn.2d ___, 211 P.3d 1023 (2009). Like Howse, Brooks was sentenced to a term of confinement and community custody that could potentially exceed the statutory maximum for his conviction. In an amended judgment and sentence, the court specified that his combined term could not exceed the statutory maximum. In re Brooks, 211 P.3d at 1024. The Sentence is Lawful and Determinate
The In re Brooks court held that (1) when community custody may extend a sentence beyond the statutory maximum, the Sentencing Reform Act of 1981 (SRA), ch. 9.94A RCW, requires the DOC to release the offender before his combined custody and confinement exceeds the statutory maximum, former RCW 9.94A.505(5); and (2) a sentence is not indeterminate when the judgment and sentence has a defined range and determinate maximum within which the DOC can set the amount of community custody to be served within that sentence. Former RCW 9.94A.030(18) (2006); In re Brooks, 211 P.3d at 1024-25.
In re Brooks cites to the current version of RCW 9.94A.030(21). The statute in effect at the time of Howse's violation is paragraph (18) of former RCW 9.94A.030.
In reaching this decision, the court reasoned that Brooks could earn early release credits and serve the rest of his sentence in community custody up to the statutory maximum. Former RCW 9.94A.728(1) (2007); In re Brooks, 211 P.3d at 1025. Here, like In re Brooks, the sentencing court specifically noted on Howse's judgment and sentence form that his term of community custody may not exceed the five-year statutory maximum. In addition, the amount of time Howse spends in community custody depends on whether or not he earns early release credits. The trial court sentenced Howse to 43 months of confinement and 36 to 48 months of community custody. Howse's sentence has "both a defined range and a determinate maximum," which is all former RCW 9.94A.030(18) requires to classify a sentence as determinate. In re Brooks, 211 P.3d at 1028.
In accordance with In re Brooks, Howse's sentence is both lawful and determinate. The Sentence Does Not Offend The Separation of Powers Doctrine
The separation of powers doctrine is not specifically enunciated in the Washington constitution, however it is implicitly recognized as a founding principle of our state and federal constitutions. State v. Blilie, 132 Wn.2d 484, 489, 939 P.2d 691 (1997). When a defendant raises a separation of powers challenge involving different branches of state government, only the state constitution is implicated. Blilie, 132 Wn.2d at 489. The separation of powers doctrine serves mainly to ensure that the fundamental functions of each government branch remain inviolate. Blilie, 132 Wn.2d at 489 (quoting Carick v. Locke, 125 Wn.2d 129, 135, 882 P.2d 173 (1994)). The legislature may constitutionally delegate authority to an administrative agency to implement statutory directives if two requirements are met: (1) the legislature must provide standards to indicate the task and designate the agency to accomplish it and (2) impose procedural safeguards to control arbitrary administrative action and abuse of discretionary power. State v. Simmons, 152 Wn.2d 450, 455, 98 P.3d 789 (2004). The legislature did not violate the separation of powers doctrine when it delegated authority to the DOC to adopt rules governing inmate behavior. Simmons, 152 Wn.2d at 455.
This issue is distinguishable from our decision in State v. Ramos, 149 Wn. App. 266, 202 P.3d 383 (2009), where we held that Ramos's sex offender classification violated separation of powers because the Thurston County Sheriff's Office determined Ramos's sex offender classification without input from other entities, contrary to RCW 4.24.550(6)(a), (b).
Our legislature authorizes the DOC to "discharge the offender from community custody on a date determined by the department, which the department may modify, based on risk and performance of the offender, within the range or at the end of the period of earned release, whichever is later." Former RCW 9.94A.715(4).
Howse neither argues that the DOC lacks the authority to designate earned early release credits to inmates nor that the earned early release system lacks adequate procedural safeguards. Rather, Howse argues that the trial court violated the separation of powers doctrine by delegating its sentencing authority to the DOC, an executive agency. Although the In re Brooks court declined to specifically review this issue, In re Brooks held that "[i]t is the SRA itself that gave courts the power to impose sentences and the DOC the responsibility to set the amount of community custody to be served within that sentence." 211 P.3d at 1028. We agree that by allowing the entity incarcerating the defendant to determine whether he has earned early release credits, the court did not delegate its sentencing power to the DOC. Sentencing courts have no authority to restrict or grant earned early release time. Former RCW 9.94A.728; In re Pers. Restraint of West, 154 Wn.2d 204, 213, 110 P.3d 1122 (2005). The court sentenced Howse to a determinate sentence of 43 months of confinement, followed by 36 to 48 months of community custody. The DOC has limited discretionary authority to grant Howse earned early release credits from prison and to adjust the community custody term within the statutory range mandated by the sentencing court. Howse Received Effective Assistance of Counsel
Effective assistance of counsel is guaranteed under the federal and state constitutions. See U.S. Const. amend VI ; Wash. Const. art. I, § 22. To prove ineffective assistance of counsel, appellant must show that (1) counsel's performance was deficient and (2) the deficient performance prejudiced him. In re Pers. Restraint of Woods, 154 Wn.2d 400, 420-21, 114 P.3d 607 (2005) (quoting State v. Hendrickson, 129 Wn.2d 61, 77-78, 917 P.2d 563 (1996)); State v. Thomas, 109 Wn.2d 222, 225-26, 743 P.2d 816 (1987). Counsel's performance is deficient when it falls below an objective standard of reasonableness. State v. Stenson, 132 Wn.2d 668, 705, 940 P.2d 1239 (1997), cert. denied, 523 U.S. 1008 (1998). Deficient performance is not shown by acts attributable to trial strategy or tactics. Hendrickson, 129 Wn.2d at 77-78. Prejudice occurs when, but for the deficient performance, there is a reasonable probability that the outcome would have been different. In re Pers. Restraint of Pirtle, 136 Wn.2d 467, 487, 965 P.2d 593 (1998). The court gives great judicial deference to trial counsel's performance and begins its analysis with a strong presumption that counsel was effective. Strickland v. Washington, 466 U.S. 668, 689, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995).
Howse argues that he was denied effective assistance of counsel when his attorney failed to object to his allegedly unlawful sentence. In order to prove deficient performance, Howse must show that the trial court would have sentenced him differently if his counsel had objected to his sentence. However, there is no indication that the trial court would have sentenced him differently because the court's sentence was in conformity with persuasive case law at that time. The trial court sentenced Howse on July 3, 2008. Until the Washington Supreme Court resolved this sentencing issue in In re Brooks, there was considerable inconsistency among the three divisions of our courts. We followed Division One's holding in State v. Sloan, 121 Wn. App. 220, 87 P.3d 1214 (2004), until Division One changed its position in State v. Linerud, 147 Wn. App. 944, 197 P.3d 1224 (2008), which was not decided until December 29, 2008. Under Sloan, only the sentencing court has the responsibility to "set forth the maximum sentence and state that the total of incarceration and community custody cannot exceed that maximum." Sloan, 121 Wn. App. at 224. Howse's judgment and sentence complied with this requirement. Since Sloan did not impose any additional burden on defense counsel and Linerud had not yet been decided, Howse cannot argue that his attorney's failure to object to his sentence fell below an objective standard of reasonable performance. Howse also cannot show prejudice, because even if his counsel had objected to his sentence, the trial court would not have sentenced him differently under Sloan. Therefore, Howse cannot prove that defense counsel's performance was prejudicial because his sentence would have been the same.
The court held that when a defendant's combined sentence for confinement and community custody may potentially exceed the statutory maximum, that sentence is indeterminate and violates the SRA. Linerud, 147 Wn. App. at 949-50.
Furthermore, at sentencing, the State asked for a high end standard range sentence of 57 months. In response, Howse's attorney (1) properly acknowledged that Howse's offender score was 9+, (2) argued that the court should consider mitigating factors, and (3) effectively persuaded the sentencing court to impose a minimum sentence of 43 months. Counsel's representation at trial did not fall below the objective standard of reasonable performance.
In conclusion, Howse's sentence complies with the requirements of In re Brooks, which is binding on this court, and the separation of powers doctrine is not offended by allowing the DOC to award inmates earned early release credits, and Howse received effective assistance of counsel. Accordingly, we affirm.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
BRIDGEWATER, P.J. and ARMSTRONG, J., Concur.