State v. Brady

Decision Date06 December 2022
Docket Number55675-8-II
PartiesSTATE OF WASHINGTON, Respondent, v. MICHAEL JOSEPH BRADY, Appellant.
CourtWashington Court of Appeals

UNPUBLISHED OPINION

WORSWICK, P.J.

Several years after he was convicted of multiple crimes, Michael Joseph Brady filed two motions to remit certain financial legal obligations (LFOs) and a motion for clarification of his judgment and sentence concerning his community custody. The trial court issued an order modifying Brady's judgment and sentence that struck some of the LFOs, but the court denied his motion for clarification. Brady appeals both orders.

We hold that: (1) the trial court was without authority to modify Brady's judgment and sentence in response to a motion to remit, (2) the trial court erred in determining that it did not have authority to remit appellate costs, (3) the trial court did not err when it failed to reallocate the funds Brady paid prior to making his motion, and (4) the trial court did not err when it denied his motion to clarify whether his community custody sentence was imposed under RCW 9.94A.715(1)(a) or (b). Accordingly, we affirm in part reverse in part, and remand for further proceedings.

FACTS

In October 2002, a trial court found Michael Brady guilty of 7 counts of first degree child molestation, 17 counts of first degree rape of a child, and 6 counts of sexual exploitation of a minor, following a bench trial. Brady was originally sentenced to 636 months of confinement and 36-48 months of community custody.[1] The trial court found Brady indigent for purposes of appeal. Following a successful personal restraint petition (PRP), the court vacated Brady's 2002 sentence and remanded the case for resentencing. The trial court again found Brady indigent for purposes of appeal. Brady was resentenced to 318 months of confinement and 36-48 months of community custody. The trial court also imposed $1,151.92 in LFOs for restitution, crime victim assessment, and criminal filing fees.

Following several PRPs and direct appeals the Washington Supreme Court and this court approved the State's appellate cost bills. Subsequently, the trial court issued orders imposing over $8,000 in appellate costs. State v. Brady, No 52120-2-II at 1 (Wash.Ct.App. Jan. 22, 2020) (unpublished).[2] In 2018, Brady filed two motions to remit his LFOs under former RCW 10.01.160 and former RCW 10.73.160 (2015).[3] Brady No. 52120-2-II at 2.[4] Under former RCW 10.73.160(4) (2015), a "[d]efendant who has been sentenced to pay costs and who is not in contumacious default in the payment may at any time petition the court" for remission. Brady, No. 52120-2-II at 2. The trial court, relying on amended RCW 10.73.160(4), denied Brady's motion.[5] Brady, No. 52120-2-II at 1, 4. In 2020, this court held that "[b]ecause the precipitating event-Brady filing his motion-occurred before . . . the effective date of the amendment, the trial court erred by applying the statute retroactively to deny Brady's motion to remit LFOs." Brady, No. 52120-2-II at 3. This court remanded "to the trial court to conduct a hearing under former RCW 10.73.160." Brady, No. 52120-2-II at 4.

In 2021, Brady filed a motion to clarify his 2006 judgment and sentence. Specifically, Brady asked the trial court to clarify whether his community custody was ordered under RCW 9.94A.715(1)(a) or RCW 9.94A.715(1)(b). Brady argued that under RCW 9.94A.715(1)(a), his community custody would begin after he completes his term of confinement, and under RCW 9.94A.715(1)(b), his community custody would begin when he "is transferred to community custody in lieu of earned release." Clerk's Papers (CP) at 9. Brady argued that his 2006 judgment and sentence was not sufficiently specific in this regard, and that if he was sentenced under RCW 9.94A.715(1)(a), his sentence would be unconstitutional because it would exceed the statutory maximum sentence in violation of Blakely v. Washington.[6]

On remand from this court's 2020 opinion, the trial court conducted a hearing to determine whether a manifest hardship existed in consideration of Brady's motion to remit his LFOs. The trial court also heard Brady's motion to clarify his judgment. VRP at 39.

In considering Brady's motion to remit, the trial court remarked that it was "inclined to find that [Brady is] unable to pay." Verbatim Transcript of Proceedings (VRP) at 18. The court recognized "the amount of time that [Brady] still has to serve" and stated, "[T]hat that in and of itself can be a basis for [the court] to waive any discretionary fines and fees." VRP at 18.

Accordingly, the court orally ruled that

[A]ny costs that are remaining would be waived. The crime victim penalty by statute is mandatory, so that would remain. Any restitution on the costs and fees that were previously imposed would be waived; and if there's any interest calculated on the restitution, if the restitution hasn't been paid then that restitution interest would not be waived.

VRP at 18. The court further clarified its ruling stating

The court costs are waived. Any remaining court costs are waived. ....
Any remaining fees-which I don't see any other fees-are waived. Any interests related to those court costs and fees is waived. The mandatory-the appellate fees are not waived, [the court] think[s] that those are mandatory. The crime victim penalty assessment remainder is not waivable, I believe that's mandatory. As far as restitution is concerned, if there's still restitution owing, any interest on that restitution cannot be waived until there's confirmation that the restitution has been paid.

VRP at 20. Regarding appellate costs, the trial court stated, "[T]he appellate court had already made a determination about what those costs are going to be, and those I don't believe are waivable so those would remain in place." VRP at 19. The trial court also declined to reallocate payments believing that it did not have authority to do so.

In addition to remitting Brady's discretionary LFOs, the trial court heard Brady's motion to strike community custody conditions from his judgment and sentence.[7] The trial court ruled

As it relates to Lines 9 and 10 [of Appendix 4 in Brady's judgment and sentence], Mr. Brady is successful; and if the State could please prepare an order reflecting that Lines 9 and 10 of Appendix F are stricken [because the conditions imposed are] not causally linked to the crimes for which Mr. Brady was found guilty.
And then as it relates to Line 11, given the fact that I've waived the discretionary-the non-mandatory fines and fees, I believe that because [Brady is] indigent and pursuant to both the Dillon and Lundstrom cases cited by Mr. Brady, that those fees [pertaining to the Department of Corrections supervision fees] should be waived also.

VRP at 35-36.

Regarding the motion to remit, the trial court entered an order modifying Brady's judgment and sentence to delete the $110 criminal filing fee and all interest accrued on non-restitution LFOs.

In arguing his motion to clarify, Brady expressed that he "just needed to know [under] what provision of RCW 9.94A.715(1)(a) or (1)(b) [the trial court] intended [Brady] to do [his] 36 to 48 months . . . of community custody." VRP at 39. Brady explained that while the court had sentenced him to 318 months, the DOC had set his maximum release date for May 26, 2031, imposing, what Brady believed was "three additional years of punishment that the court is not authorized to" impose. VRP at 39. Brady asked the trial court to include a notation on his judgment and sentence indicating that if he were to remain imprisoned then he "would have no community custody after that because that would be the statutory maximum." VRP at 40.

In response, the State argued, among other things, that Brady's understanding of "statutory maximum" was legally incorrect, and that the statutory maximum for Brady's offenses is life in prison. VRP at 40. Consequently, the trial court could impose the community custody after his period of incarceration, regardless of how it was calculated.

The trial court adopted the State's arguments and entered an order denying Brady's motion. Brady appeals the order modifying his sentence and the order denying his motion for clarification.

ANALYSIS

Brady argues the trial court erred by failing to modify his judgment and sentence regarding payment of supervision fees and collection costs, by not remitting his appellate costs by not recognizing its authority to reallocate payments made on discretionary LFOs to his mandatory LFOs, and by denying his motion to clarify the court's community custody order.

I. TRIAL COURT'S AUTHORITY TO MODIFY 2006 JUDGMENT AND SENTENCE

As an initial matter, we hold that the trial court erred in modifying Brady's 2006 judgment and sentence in response to his motion to remit. The trial court erred when it entered an order "modifying" the judgment and sentence to delete the $110 criminal filing fee and nonrestitution interest. CP at 58.

Brady was sentenced under the Sentencing Reform Act of 1981 (SRA). "The SRA permits modification of sentences only in specific, carefully delineated circumstances." State v. Shove, 113 Wn.2d 83, 86, 776 P.2d 132 (1989). Brady's motions to remit were filed under former RCW 10.01.160, and RCW 10.73.160.[8] Neither of those statutes allowed a trial court to violate the principles of finality and modify Brady's judgment and sentence. They provided only that the sentencing court could "remit all or part of the amount due in costs, modify the method of payment under RCW 10.01.170, or convert the unpaid costs to community restitution hours." Moreover, RCW 36.18.020, the statute the trial court was apparently relying on to modify Brady's judgment and sentence, only applies...

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