State v. Briggs
| Decision Date | 14 November 2022 |
| Docket Number | 83278-6-I |
| Parties | STATE OF WASHINGTON, Respondent, v. JOHN MARSHALL BRIGGS, Appellant. |
| Court | Washington Court of Appeals |
UNPUBLISHED OPINION
Briggs argues that the trial court exceeded its statutory authority at his resentencing when it imposed a new, full five-year no-contact order (NCO), without giving him "credit" for the time that had elapsed under the NCO entered with the original sentence. Briggs additionally argues that this failure violated his due process, double jeopardy, and equal protection rights, and arose because of the ineffective assistance of his counsel. Briggs finally claims that his two judgments and sentences were ambiguous. We affirm Briggs's convictions and remand only for the trial court to clarify that all three of his convictions run concurrently.
Briggs was found guilty of a felony violation of a court order (count I) and two attempted gross misdemeanor violations of a court order (counts II and III). In March 2020, the trial court sentenced Briggs under a drug offender sentencing alternative (DOSA) and imposed 30 months of confinement and 30 months of community custody for the felony conviction. For each of the gross misdemeanor convictions, the trial court sentenced Briggs to 364 days set to run concurrently with count I. As a condition of his conviction, the trial court also imposed a five-year post-conviction domestic violence NCO, which would expire in March 2025.
Briggs successfully appealed his convictions due to a defective charging document and we reversed. State v. Briggs, 18 Wn.App. 2d 544, 492 P.3d 218 (2021).
After his second trial, Briggs was convicted of the same charges. In October 2021, the trial court sentenced Briggs to 60 months confinement on count I and 364 days on count II and III, with credit for confinement time served. The trial court issued two judgment and sentence documents: one for count I and another for counts II and III, both under the same cause number. On the judgment and sentence for counts II and III, the court checked the box noting that "[t]erms on each count to run concurrently[.]"[1] The court again imposed a five-year postconviction NCO, which would expire in October 2026.
Briggs appeals.
Briggs argues that the trial court erred in imposing the second postconviction NCO in October 2021. We disagree.
The Sentencing Reform Act permits trial courts to impose "crime-related prohibitions" such as no-contact orders when sentencing defendants. State v. Armendariz, 160 Wn.2d 106, 120, 156 P.3d 201 (2007). RCW 10.99.050 sets limitations on that authority, providing that where a court, as a "condition" of a felony sentence, restricts a defendant's contact with a victim, the resulting order may not exceed the defendant's maximum sentence. RCW 10.99.050(1), .050(2)(d). We review sentencing conditions for an abuse of discretion. State v. Warren, 165 Wn.2d 17, 32, 195 P.3d 940 (2008).
Briggs does not dispute that the trial court had the authority to impose a five-year NCO where he was sentenced the statutory maximum sentence. But he claims that the October 2021 NCO was in excess of the statutory maximum because “[t]he duration of a post-conviction no-contact order starts to run from the date of the original sentencing, not the date of the second sentencing.” According to Briggs, the October 2021 “resetting” of the NCO's start date, without providing credit for the time that the original NCO was in effect, extended the NCO beyond five years.
Briggs, however, does not provide any legal authority for his claim that the duration of the NCO in 2021 was limited to five years from the previously issued NCO in 2020. Where a party fails to provide citation to support a legal argument, we assume counsel, like the court, has found none. State v. Loos, 14 Wn.App. 2d 748, 758, 473 P.3d 1229 (2020) (citing State v. Arredondo, 188 Wn.2d 244, 262, 394 P.3d 348 (2017)).
Briggs cites only to State v. Granath, 190 Wn.2d 548, 554-55, 415 P.3d 1179 (2018) for the general position that an NCO cannot last longer than the sentence imposed by the court. However, Granath is silent as to whether a court must give credit for any previous time served under an NCO.
Moreover, unlike RCW 9.94A.505(6), which provides a statutory basis for providing a defendant with credit for time served in confinement prior to sentencing, there is no comparable provision in the no-contact order statute RCW 10.99.050.
As the trial court did not impose an NCO longer than five years from the date of the effective[2] sentencing, and otherwise did not abuse its discretion, the court did not exceed its statutory authority by starting the NCO on the date of resentencing.
Briggs next contends that the expiration date of his October 2021 NCO violates his due process rights because he was penalized with a more severe sentence after a successful appeal.
A trial court violates a defendant's due process rights when it penalizes the defendant for successfully pursuing an appeal or collateral remedy. State v. Brown, 193 Wn.2d 280, 288, 440 P.3d 962 (2019) (quoting North Carolina v. Pearce, 395 U.S. 711,724, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969)). A defendant is entitled to a rebuttable presumption of judicial vindictiveness when, after a successful appeal, a trial court imposes a more severe sentence without explanation. State v. Parmelee, 121 Wn.App. 707, 708-709, 90 P.3d 1092 (2004).
There is no presumption of judicial vindictiveness in Briggs's sentencing after his second trial because the trial court did not impose a "more severe sentence." The court imposed an identical five-year NCO sentencing condition upon Briggs's second conviction. There was no due process violation.
Briggs suggests that his second NCO was a violation of double jeopardy because the duration of the NCO did not "account [for] the sentence that [he] served prior to the second sentencing."
Both the federal and state constitutions protect defendants from being punished multiple times for the same offense. U.S. CONST. amend. V; WASH. CONST. art. 1, § 9. Double jeopardy protections ensure that those convicted of crimes must be credited for time served in confinement prior to sentencing. Reanier v. Smith, 83 Wn.2d 342, 346, 517 P.2d 949 (1974). The legislature created a statutory basis for this constitutional protection in RCW 9.94A.505(6) which requires a sentencing court to "give [an] offender credit for all confinement time served before the sentencing[.]"[3]
While these constitutional and statutory bases for credit for time served apply to "confinement," they do not necessarily extend to a defendant's sentencing conditions. Instead, we apply a two-part test to determine whether government action is "sufficiently punitive" to trigger double jeopardy protections. State v. Medina, 180 Wn.2d 282, 293, 324 P.3d 682 (2014). We first ask whether the government intends the action to be punitive, and if not, where the effect is so punitive as to override the nonpunitive intent. Id. (citing Harris v. Charles, 171 Wn.2d 455, 467, 256 P.3d 328 (2011)). A petitioner bears the burden to prove the action is punitive. Id. at 294. "An action is not punitive simply because the defendant sees it as so; rather, a defendant must present clear proof that a sanction not labeled as punitive is nonetheless so punitive as to violate the prohibition against multiple penalties and therefore subject the defendant to double jeopardy." State v. McCarter, 173 Wn.App. 912, 918, 295 P.3d 1210 (2013).
Washington courts have previously held that many sentencing conditions are not punitive and do not violate double jeopardy. For example, in Medina, we concluded that a petitioner was not entitled to credit for time served in a supervised alternative community program. 180 Wn.2d at 293-94. In Harris, the petitioner was not entitled to credit for time spent on electronic home monitoring. 171 Wn.2d at 469-73. We have also concluded that other sentencing conditions are simply not punitive in nature. State v. Boyd, 1 Wn.App. 2d 501,513, 408 P.3d 362 (2017) (); McCarter, 173 Wn.App. at 924 (warrant fees).
In a similar case, In re Arseneau, 98 Wn.App. 368, 989 P.2d 1197 (1999), the trial court prohibited the petitioner from having any contact with his step-daughter for a period of 10 years. Id. at 370. Later, the Department of Corrections (DOC) imposed a prohibition preventing Arsenau from corresponding with his niece. Id. Arseneau challenged the DOC no-contact prohibition, arguing that it presented a double jeopardy issue by "enhanc[ing] the punishment for his original crime." Id. at 379. We concluded that the no-contact prohibition was not punitive: Id. at 379-80.
Briggs fails to meet his burden to show with "clear proof" that the NCO, unlike his confinement, was punitive and thus triggered his constitutional double jeopardy protections. His NCO is similar to the DOC no-contact prohibition in Arseneau, which we concluded was not intended to be punitive for the offender, but designed to protect victims.
Finally, again Briggs provides no statutory authority, unlike RCW 9.94A.505(6), that he is entitled to credit for the duration of time he was under the 2020 NCO. That Briggs may be prohibited, as a result of two separate NCOs, for some period over five years from contacting his victim does not subject him to double jeopardy.
Briggs...
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