Opinion
No. 27836-7-II c/w 27896-1-II, 27966-5-II.
Filed: December 6, 2002 UNPUBLISHED OPINION
Appeal from Superior Court of Pierce County Docket No: 99-1-02307-4 Judgment or order under review Date filed: 08/17/2001
Counsel for Appellant(s), Pattie Mhoon, Attorney at Law, 949 Market St. Ste 488, Tacoma, WA 98402-3600.
Counsel for Respondent(s), John Martin Neeb, Attorney at Law, Co City Bldg, 930 Tacoma Ave S Rm 946, Tacoma, WA 98402-2102.
William Oestreich appeals a Pierce County Superior Court order imposing previously suspended sanctions for violation of conditions of his community placement. He contends that (1) the underlying conditions were improper because they were not related to the crimes, (2) the conditions were not contained in the community placement orders, and (3) the court failed to exercise its discretion. A commissioner of this court considered the matter pursuant to Oestreich's motion for accelerated review and referred it to a panel of judges. RAP 18.15. We vacate the sanctions and remand for a new hearing.
At issue here are sanctions imposed in three different cases: 1994 convictions of attempted first degree robbery with a deadly weapon and first degree burglary (superior court cause number 93-1-03569-3); a 1999 conviction of unlawful possession of a controlled substance (superior court cause number 99-1-02307-4); and a 2000 conviction of willful violation of community custody provisions (superior court cause number 00-1-01999-0). Oestreich pleaded guilty in each instance.
In February and March of 2001, the Department of Corrections asked the court to impose a total of 720 days in sanctions for violations of conditions imposed in these cases. Specifically, the Department contended that as to the 1994 case, Oestreich had failed to (1) make payments on his legal financial obligations and (2) report to his probation officer as required. With regard to the 1999 and 2000 cases, Oestreich had (1) possessed a controlled substance, (2) failed to report, (3) failed to make payments on his financial obligations, and (4) failed to obtain a drug/alcohol evaluation and participate in recommended treatment pursuant to an October 25, 2000 stipulated agreement with the Department. He had also failed to perform the community service required in the 1999 sentence. Oestreich stipulated to the violations and on March 23, 2001, the trial court modified his sentences, imposing confinement for 720 days, consecutive to any other sentences. The court further ordered that he be released on May 25, 2001, suspending the remainder of the sanctions on condition that Oestreich comply with drug treatment requirements. However, Oestreich was charged with another crime, second degree possession of stolen property, and not released on May 25, 2001. He was sentenced to 17 months in prison as a result of that charge. Thereafter, the Department asked the court to impose the sanctions suspended because Oestreich had not complied with the conditions of the suspension. The court found that while the violation was not willful, the conditions of suspension had nevertheless not been satisfied, and the incarceration had to be imposed. It entered the order of modification on August 17, 2001. Oestreich claims that as to the 1994 and 1999 convictions, the court could not sanction him for failing to obtain drug treatment because that was not a condition included in the community placement orders for those crimes. He also argues that the requirement is invalid as to the 1994 and 2000 convictions because it was not related to those crimes. However, drug treatment was a condition to which Oestreich stipulated as a Department-imposed sanction for earlier violations. That procedure is proper under RCW 9.94A.634(3)(a)(i). Former RCW 9.94A.200(3)(a)(i) (2001). There is no statutory requirement that conditions imposed under that provision be crime related. Oestreich also contends that the trial court erred in refusing to exercise its discretion to deny sanctions on the basis of lack of willfulness. Willfulness is a factor only with regard to conditions pertaining to legal financial obligations and community service. State v. Gropper, 76 Wn. App. 882, 885-86, 888 P.2d 1211 (1995); State v. Peterson, 69 Wn. App. 143, 146, 847 P.2d 538 (1993). Nevertheless, the imposition of sanctions was a matter within the trial court's discretion. See State v. Hughes, 70 Wn. App. 142, 144-45, 852 P.2d 1097 (1993). It is not clear that the court exercised that discretion here. However, in light of our disposition of this appeal, we need not resolve that question. Oestreich appeals only from the August 17, 2001 order modifying sentence. However, the State asks us to review the March 23, 2001 order pursuant to RAP 2.4(b), asserting that it prejudicially affected the August 17 order. Inasmuch as the August 17 modification was based on Oestreich's failure to comply with conditions imposed in the March 23 order, review of that order is appropriate. Review is also appropriate under the rule that courts have the duty and power to correct an erroneous sentence upon discovery of the error. In Re Personal Restraint of Call, 144 Wn.2d 315, 332, 28 P.3d 709 (2001); State v. Julian, 102 Wn. App. 296, 304, 9 P.3d 851 (2000), review denied, 143 Wn.2d 1003 (2001).
As the State asserts, the trial court erred in suspending portions of the sanctions it imposed. Under RCW 9.94A.634, a trial court is without authority to suspend a sanction. State v. DeBello, 92 Wn. App. 723, 728, 964 P.2d 1192 (1998). The legislative purpose behind RCW 9.94A.634 is to empower judges to enforce sentences they have imposed; thus, its purpose is remedial not punitive. See, DeBello, 92 Wn. App. at 727 (citing State v. McDougal, 120 Wn.2d 334, 347, 841 P.2d 1232 (1992)). Neither is there an inherent authority to suspend a sentence; rather, the power to suspend or defer imposition or execution must be granted by the legislature. State v. Bird, 95 Wn.2d 83, 85, 622 P.2d 1262 (1980).
Because the trial court might have ordered a different sanction had it known that it could not suspend any portion of the incarceration, we remand for further proceedings consistent with this opinion.
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 and SEINFELD JJ., concur.