State v. Brady
| Decision Date | 27 March 2018 |
| Docket Number | 49183-4-II |
| Citation | 3 Wn.App.2d 1003 |
| Court | Washington Court of Appeals |
| Parties | STATE OF WASHINGTON, Respondent, v. MICHAEL J. BRADY, Appellant. |
UNPUBLISHED OPINION
Bjorgen, CJ.
Michael Joseph Brady appeals the superior court's denial of his CrR 7.8 motion for clarification of sentence and/or modification of community custody conditions. Brady's original sentence included community custody conditions contained in Appendix H. We vacated that sentence, and on resentencing the superior court did not reimpose those conditions as a part of his amended sentence. Brady's CrR 7.8 motion essentially challenged the alleged reliance on Appendix H by the Department of Corrections (DOC) in setting expectations for compliance with court ordered community custody.
Brady argues that the superior court erred in ruling on his CrR 7.8 motion that the community custody conditions contained in Appendix H of his original sentence remained in effect even though on remand the superior court failed to reimpose those conditions.[1] He also requests us to decline to impose appellate costs. In his statement of additional grounds (SAG), Brady makes several additional arguments in support of the issues presented above.
We hold that Brady's motion was not properly brought under CrR 7.8, but that it was in effect a motion to clarify a sentence and that the superior court had the authority to decide that motion. We hold also that the superior court erred when it ruled on that motion that the community custody conditions from Brady's original sentencing remained in effect. Finally, we decline to reach the issue of appellate costs.
Therefore we reverse the superior court's order on defendant's motion to clarify and/or for modification of community custody conditions and remand for the superior court to enter an order stating that Appendix H is no longer a part of Brady's sentence.
FACTS
In 2002, Brady was convicted following a bench trial on 17 counts of first degree child rape, 7 counts of first degree child molestation, and 6 counts of sexual exploitation of a minor with sexual motivation. At his initial sentencing, the judge imposed an exceptional sentence of 636 months. The sentencing judge also ordered community custody and required compliance with several community custody conditions including conditions set forth in Appendix H. Appendix H imposed the following conditions, among others:
Clerk's Papers (CP) at 49. Brady appealed, and we affirmed his convictions on all counts in State v Brady, noted at 121 Wn.App. 1032 (2004).
Subsequently Brady filed his first timely personal restrain petition (PRP), which sought relief from his sentence by relying on Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004).[2] We concluded that, under Blakely, Brady's exceptional sentence violated his Sixth Amendment right to jury trial. Of importance to the instant appeal, we granted his petition, vacated his sentence, and remanded his case for resentencing.
At resentencing, the superior court imposed a sentence at the high end of the sentencing range. It also reimposed a lifetime no-contact order on Brady in relation to his victims, community custody, and mandatory DNA (deoxyribonucleic acid) testing. The superior court did not discuss any specific community custody conditions at the resentencing hearing.
CP at 76. These conditions are reiterated in Appendix F of the amended sentence. The amended sentence and Appendix F also provided the sentencing judge with the option to add supplementary community custody conditions by either checking a box or filling in a blank: none were checked or filled in. The amended sentence did not incorporate by reference or otherwise address the community custody conditions described in Appendix H of Brady's original sentence.
After resentencing, Brady appealed his amended sentence. We entered a ruling affirming the amended sentence, which became the final decision terminating our review on June 4, 2008. Brady filed a petition for writ of certiorari on appeal from his amended sentence, which the United States Supreme Court denied on October 6, 2008. Brady v. Washington, 555 U.S. 872, 129 S.Ct. 172, 172 L.Ed.2d 123 (2008).
Brady remains in prison. DOC counselors provide inmates with facility offender plans, which, among other things, delineate expectations for conditions of enforcement when under community custody. Brady claims that prior to 2015, DOC properly delineated the conditions provided in Appendix F to set expectations for compliance with court ordered community custody. Now, however, he claims DOC has reverted back to using Appendix H from his original sentence to set expectations for compliance.
On March 29, 2016, Brady filed a CrR 7.8(b) motion for clarification of sentence and/or modification of community custody conditions with the superior court. In that motion, he challenged DOC's use of the conditions contained in Appendix H from his original vacated 2002 sentence to set expectations for compliance with court ordered community custody. The State opposed the motion on its merits and did not argue that the motion should be transferred to this court as a personal restraint petition under CrR 7.8(c)(2).
The superior court retained consideration of Brady's motion under CrR 7.8(c)(2) because it determined the motion was not barred by the one year time limit in RCW 10.73.090 and Brady made a substantial showing that he was entitled to relief. After review of Brady's written pleadings and the State's response, the superior court ordered "that the conditions of community custody imposed at the original sentencing hearing in 2002 remain in effect to include Appendix H." CP at 138. It also denied Brady's request to modify his community custody conditions.
Brady appeals.
ANALYSIS
Generally we review a superior court's CrR 7.8 ruling for an abuse of discretion. State v. Zavala-Reynoso, 127 Wn.App. 119, 122, 110 P.3d 827 (2005). Here, however, the superior court's decision turns on a question of law, which we review de novo. State v. Womac, 160 Wn.2d 643, 649, 160 P.3d 40 (2007).
CrR 7.8(b)(1) allows, among other matters, relief from a judgment on grounds of mistake. For example, in Zavala-Reynoso, 127 Wn.App. at 123, we concluded that the defendant's argument that the sentencing court miscalculated his offender score was a claim of mistake governed by CrR 7.8(b)(1). Similarly, in State v. Crawford, 164 Wn.App. 617, 624, 267 P.3d 365 (2011), we held that the miscalculation of the defendant's offender score was a legal error and the defendant's CrR 7.8(b) motion to correct his sentence should have been granted. CrR 7.8(b) institutes a one year time bar for claims of mistake.
CrR 7.8(b)(4) provides relief when the judgment is void. A void judgment may be collaterally attacked "within a reasonable time, " subject to the further restrictions of RCW 10.73.090. CrR 7.8(b).
CrR 7.8(b)(5) provides that the superior court may relieve a party from a final judgment for "[a]ny other reason justifying relief from the operation of the judgment." Relief under CrR 7.8(b)(5) is limited to extraordinary circumstances not covered by any other section of the rule. State v. Smith, 159 Wn.App. 694, 700, 247 P.3d 775 (2011). CrR 7.8(b)(5) motions must be made within a "reasonable time, " but are still subject to RCW 10.73.090 and RCW 10.73.100.[3]CrR 7.8(b).
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