State v. Pannell, 85437–8.

• Decision Date: 01 December 2011
• Docket Number: No. 85437–8.,85437–8.
• Citation: 267 P.3d 349,173 Wash.2d 222
• Parties: STATE of Washington, Respondent, v. Daniel Herbert PANNELL, Petitioner.
• Court: Washington Supreme Court

173 Wash.2d 222

267 P.3d 349

STATE of Washington, Respondent,

v.Daniel Herbert PANNELL, Petitioner.

No. 85437–8.

Supreme Court of Washington, En Banc.

Dec. 1, 2011.

Stephanie C. Cunningham, Attorney at Law, Seattle, WA, for Petitioner.

Thomas Charles Roberts, Attorney at Law, Tacoma, WA, for Respondent.

CHAMBERS, J.

[173 Wash.2d 223] ¶ 1 Daniel Pannell pleaded guilty to incest and child molestation. His lengthy sentence was suspended pending satisfactory progress in sexual offender treatment, among other things. Unfortunately, he failed to make satisfactory progress and his suspended sentence was revoked. He now contends he is entitled to credit for the time his sentence was suspended, at least to the extent that his time incarcerated, his time in postconfinement community custody, and his time on the suspended sentence added together exceed the statutory maximum for class B felonies. We conclude he is not entitled to credit against his sentence for time spent in the community under a special sex offender sentence alternative (SSOSA) before his suspended sentence was revoked. We affirm the Court of Appeals. State v. Pannell, noted at 158 Wash.App. 1041, 2010 WL 4630935.

FACTS

¶ 2 In 2002, Pannell's 16–year–old daughter told her stepmother that Pannell had sexually assaulted her. Not long afterward, the State charged him with incest. The record suggests that he had repeatedly propositioned his daughter before one day telling “her to go into the bedroom and pull her pants down, which she ultimately did.” Clerk's Papers (CP) at 2. After she refused to have intercourse with him he “performed oral sex on her.” CP at 2. After a brief investigation, the State amended the charges to add four counts of second degree child molestation of another victim. In 2003, Pannell pleaded guilty to five counts of incest and child molestation, each count carrying a maximum sentence of 120 months. RCW 9A.20.021 (1)(b). Judge Katherine M. Stolz sentenced Pannell to a standard range sentence of 116 months in prison but suspended the execution of the sentence conditioned on his satisfactory progress in a SSOSA. Specifically, the judgment and sentence said:

SUSPENSION OF SENTENCE. The execution of this sentence is suspended; and the defendant is placed on community custody under the charge of DOC [Department of Corrections] for the length of the suspended sentence or three years, whichever is greater, and shall comply with all rules, regulations and requirements of DOC and shall perform affirmative acts necessary to monitor compliance with the orders of the court as required by DOC. Community custody may be extended for up to the statutory maximum term of the sentence.

CP at 41. Pannell was remanded into community custody and began outpatient sexual offender treatment.

¶ 3 Unfortunately, Pannell did not do well in treatment. On May 13, 2005, he was advised by the court “that he had ninety days to show marked improvement.” CP at 57. While he made some initial improvement, by that November, his treatment provider reported that he had “difficulty with boundary issues, [and] appeared to be dishonest and manipulative with his group, his sex offender treatment provider and CCO [community custody officer].” CP at 74. In May 2006, his sexual deviancy treatment counselor terminated treatment and recommended revoking Pannell's suspended sentence. Among other things, his counselor reported that “Mr. Pannell has failed to gain an understanding of his offense dynamics or the precipitating factors that lead to his offense. He continues to blame the victim for his crimes and fails to accept responsibility for his actions.” CP at 58. The counselor also stressed that Pannell had “made no demonstrable effort to pay his [treatment] bill.” Id. The counselor concluded that “Mr. Pannell is a poor candidate for treatment and that may in fact be unamenable to treatment.” Id. After receiving reports from both Pannell's counselor and community corrections officer, the State petitioned the court to revoke Pannell's suspended sentence. The judge granted the petition and imposed the full 116–month sentence, plus 3 to 4 years of community placement.

¶ 4 In 2009, Pannell filed a CrR 7.8 motion seeking to be resentenced. Initially, he contended his judgment and sentence was “invalid on its face” because, depending on whether he accrued sufficient good time credit, he could potentially serve more than the 120–month statutory maximum for class B felonies. RCW 9A.20.021 (1)(b); CP at 85. In the wake of In re Personal Restraint of Brooks, 166 Wash.2d 664, 211 P.3d 1023 (2009), the State agreed with him and offered to arrange to have his sentence clarified to make clear he would not serve more than 120 months in combined total confinement and postconfinement community custody. Pannell rejected the offer because it would not also give him credit for the time he was in the community under the suspended sentence. Essentially, he contended that community custody under a suspended sentence was the same as postconfinement community custody and since, under the Sentencing Reform Act of 1981, chapter 9.94A RCW, he was entitled to credit for the latter; he was also entitled to credit for the former.

¶ 5 At the hearing on the CrR 7.8 motion, Judge Stolz concluded that community custody under a suspended SSOSA sentence was analogous to bail, and “you don't get credit for the time that you're out on bail.” Verbatim Report of Proceedings at 6. Judge Stolz did clarify Pannell's judgment and sentence pursuant to Brooks, 166 Wash.2d 664, 211 P.3d 1023, by appending an order that said:

The total time that Defendant can be under this Sentence is 120 months. This includes time spent in the Pierce County Jail; [i]n the Department of Corrections & on Community Custody post release from the Department of Corrections.

CP at 123. Unsatisfied, Pannell appealed. The Court of Appeals affirmed, and we took review. State v. Pannell, 171 Wash.2d 1009, 249 P.3d 1028 (2011).

ANALYSIS

¶ 6 We must decide whether the legislature intended that offenders sentenced under a SSOSA receive credit for the time they spend in the community on a suspended sentence against their maximum sentence. Pannell's arguments rely purely on statutory interpretation. In cases of statutory interpretation, “[t]he court's fundamental objective is to ascertain and carry out the Legislature's intent.” Dep't of Ecology v. Campbell & Gwinn, LLC, 146 Wash.2d 1, 9, 43 P.3d 4 (2002) (citing State v. J.M., 144 Wash.2d 472, 480, 28 P.3d 720 (2001)). Only issues of law are before us, and our review is de novo. Brooks, 166 Wash.2d at 667, 211 P.3d 1023 (citing State v. Miller, 156 Wash.2d 23, 27, 123 P.3d 827 (2005)).

¶ 7 The legislature enacted the SSOSA system to create a sentencing alternative for certain first time sex offenders who plead guilty and are found amenable to treatment. Laws of 2000, ch. 28 § 20(2), (3); RCW 9.94A.670(2), (3).¹ Currently under the SSOSA statute, if the sentence is less than 11 years of confinement, the trial judge is authorized to suspend it. RCW 9.94A.670(4). The trial judge must impose treatment on the offender, and the legislature has created a heavy incentive for offenders to comply with conditions and to make satisfactory progress in treatment. If they do not comply with conditions and do not make satisfactory progress, the suspended sentence will be revoked and the prison sentence will be reimposed. RCW 9.94A.670(5). The court monitors the offender's progress and

may revoke the suspended sentence at any time during the period of community custody and order execution of the sentence if: (a) The offender violates the conditions of the suspended sentence, or (b) the court finds that the offender is failing to make satisfactory progress in treatment. All confinement time served during the period of community custody shall be credited to the offender if the suspended sentence is revoked.RCW 9.94A.670(11); ² see also RCW 9.94A.670(8) (monitoring requirements).

[173 Wash.2d 228] ¶ 8 Another portion of the Sentencing Reform Act of 1981 creates maximum sentences by class of crime, and yet another directs that community custody be considered part of an offender's sentence. RCW 9A.20.021; RCW 9.94A.505(5). Essentially, Pannell contends that since under RCW 9.94A.505(5) community custody is considered part of an offender's sentence, the legislature intended that community custody while a sentence is suspended under a SSOSA also be considered part of an offender's sentence, at least for purposes of the statutory maximum under RCW 9A.20.021 (1)(b).

¶ 9 Like an old milk stool, there are three legs to Pannell's argument. First, when describing the conditions imposed on an offender during the suspended term of a SSOSA sentence, the legislature used the term “community custody.” The SSOSA statute allows a trial court to suspend an offender's term of confinement and impose “[a] term of community custody equal to the length of the suspended sentence.” RCW 9.94A.670(5)(b) (emphasis added).

¶ 10 Second, an offender's sentence cannot exceed the statutory maximum term for the class of crime for which the offender was committed. RCW 9A.20.021(1).³ Pannell was convicted of a class B felony. The maximum sentence for a class B felony is 10 years or 120 months. RCW 9A.20.021 (1)(b). Another statute specifies that courts must include “community custody” when calculating the maximum sentence. “[A] court may not impose a sentence providing for a term of confinement or community custody that exceeds the statutory maximum for the crime.” RCW 9.94A.505(5). In Brooks, we held that the judgment and sentence itself must reflect this limitation. Where the term of confinement and community custody imposed by the trial court has the potential to exceed the statutory maximum for the crime, the trial court must explicitly state “the combination of confinement and community custody shall not exceed the statutory maximum.”...