State v. Sims

• Decision Date: 05 May 2011
• Docket Number: No. 83779–1.,83779–1.
• Citation: 256 P.3d 285,171 Wash.2d 436
• Parties: STATE of Washington, Respondent,v.Jack Irvin SIMS, Petitioner.
• Court: Washington Supreme Court

171 Wash.2d 436

256 P.3d 285

STATE of Washington, Respondent,

v.Jack Irvin SIMS, Petitioner.

No. 83779–1.

Supreme Court of Washington, En Banc.

Decided May 5, 2011.

OPINION TEXT STARTS HEREArgued Nov. 9, 2010.

Background: Defendant was convicted on his plea of guilty in the Superior Court, Cowlitz County, James J. Stonier, J., of first degree child molestation, for which he received, at his request, a special sex offender sentencing alternative (SSOSA) sentence, resulting in a sentence of 60 months to life imprisonment to be suspended after 180 days of confinement so long as defendant followed all conditions of his SSOSA sentence, including a geographic condition banishing him from county. Defendant appealed, challenging only the geographic condition of his SSOSA sentence. The Court of Appeals, 152 Wash.App. 526, 216 P.3d 470 vacated and remanded. Defendant filed petition for review.

Holdings: Following grant of petition, the Supreme Court, Owens, J., held that:

(1) state, in seeking a partial reversal of sentencing court's order, was seeking “affirmative relief,” and

(2) affirmative relief requested by state in form of resentencing hearing was not demanded by necessities of the case.

Remanded to trial court for resentencing.

Debra L. Stephens, J., dissented, with opinion, in which Barbara A. Madsen, C.J., concurred.

John A. Hays, Attorney at Law, Longview, WA, for Petitioner.

Amie L. Hunter, Cowlitz County Prosecutor's Office, Kelso, WA, for Respondent.

OWENS, J.

[171 Wash.2d 438] ¶ 1 Our state constitution provides a right of direct appeal in criminal cases. Const. art. I, § 22. Here, Jack Irvin Sims sought to exercise his right of appeal by challenging only a particular condition of his sentence; he does not challenge his underlying conviction or the main components of his sentence. The State conceded that the specific sentencing condition that Sims challenged was unconstitutional and then argued that every part of Sims's sentence should be revoked and remanded to the trial court for reconsideration. To grant the State's request would constitute undue affirmative relief for the State and would unreasonably chill a defendant's right of appeal. We therefore hold that the remand should be for the limited purpose of revising the improper condition of Sims's sentence.

FACTS

¶ 2 On February 21, 2008, Sims pleaded guilty to one count of first degree child molestation. The basis of his plea was an isolated incident in which Sims assaulted an 11 year old girl. Sims entered his neighbor's home when he knew two children were there alone. He entered the bathroom where the girl was showering, washed her back, and then left the home.

¶ 3 The Department of Corrections recommended that Sims receive a special sex offender sentencing alternative (SSOSA) ¹ sentence. Sims also requested a SSOSA. The recommendations were supported by an evaluation of Sims by Dr. Levi Migneault, a certified sex offender treatment provider. Relying on two classification tools, Dr. Migneault concluded that, with a sex offender treatment program, Sims would pose a very low risk of reoffending. Several of Sims's family members, a family friend, and a former work supervisor also spoke on Sims's behalf at his sentencing hearing, mostly attesting to Sims's community ties to Cowlitz County, where he has lived, worked, and raised a family for most of his life.

[171 Wash.2d 440] ¶ 4 The State and the victim's family opposed a SSOSA, citing concerns about the impact on the victim should Sims remain in the community where the victim would potentially be forced to encounter him. Sims and his wife's home of over 40 years is across the street from the victim's family home. The State also expressed concerns about whether Sims could sufficiently benefit from treatment.

¶ 5 At the sentencing hearing, the trial court recognized the concerns about the victim, stating, “I don't think this young girl should ever have to see [Sims] again in her life. And I will not allow him to remain in that community and grant SSOSA.” Verbatim Report of Proceedings (VRP) at 37. The trial court nonetheless granted Sims's request for a SSOSA, imposing a sentence of 60 months to life to be suspended after 180 days of confinement so long as Sims then follows all of the conditions of his SSOSA. In addition to imposing a lifetime no-contact order and standard and crime-related conditions on Sims's sentence, the trial court ordered:

The Defendant shall not to [sic] reside in Cowlitz County [nor] enter Cowlitz County other than to travel from a location outside the county to a destination outside the county. If in Cowlitz County, the defendant shall not leave his transportation, and shall not enter the city limits of Castle Rock.

Clerk's Papers (CP) at 55. The trial court agreed with the victim's family that restricting Sims only from the city of Castle Rock was an insufficient geographic limitation. VRP at 38. Because the maximum term of Sims's sentence is life, the condition lasts for his lifetime.

¶ 6 Sims appealed, challenging only the sentencing condition banishing him from Cowlitz County and Castle Rock. The State responded by conceding that the condition was not narrowly tailored and should therefore be vacated. Without filing a notice of cross appeal, the State raised an additional issue in its reply brief, arguing that the case should be remanded for reconsideration of the SSOSA sentence.

[171 Wash.2d 441] ¶ 7 The Court of Appeals accepted the State's concession that “Sims' banishment order is not narrowly tailored.” State v. Sims, 152 Wash.App. 526, 532, 216 P.3d 470 (2009). The Court of Appeals also held that, on remand, the trial court retains discretion either to reimpose a SSOSA with constitutionally tailored conditions or deny a SSOSA altogether. Id. at 534, 216 P.3d 470. Sims petitioned this court for review, which we granted. State v. Sims, 168 Wash.2d 1010, 227 P.3d 852 (2010). We now review the question of the proper scope of remand in this case.

ISSUE

¶ 8 Upon vacating Sims's unconstitutional sentencing condition, did the Court of Appeals properly remand the case for complete resentencing, including reconsideration of the previously granted SSOSA, or should the remand be limited to revision of the sentencing condition?

ANALYSIS

¶ 9 “This court reviews the interpretation of court rules de novo.” State v. Osman, 168 Wash.2d 632, 637, 229 P.3d 729 (2010). RAP 2.4 addresses the proper scope of appellate review. Under RAP 2.4(a), courts will, “at the instance of the appellant, review the decision or parts of the decision designated in the notice of appeal.”

¶ 10 At the outset, we reject the implication by the Court of Appeals that any issue or remedy was properly before the court simply because Sims gave general notice of his intent to appeal his “judgment and sentence, and every part thereof,” CP at 56. Sims, 152 Wash.App. at 534–35, 216 P.3d 470. Such a cursory conclusion fails to account for established limiting principles, including, for example, that an appellant is deemed to have waived any issues that are not raised as assignments of error and argued by brief. See, e.g., Cowiche Canyon Conservancy v. Bosley, 118 Wash.2d 801, 809, 828 P.2d 549 (1992). Sims indicated only a single assignment of error—the sentencing condition banishing him from the county—and limited his argument to that error. Since Sims would be deemed to have waived all issues except the single sentencing condition, it would be incongruous to use the rationale that Sims filed a broad notice of appeal to preserve, for the benefit of the State, issues waived by Sims.

¶ 11 RAP 2.4(a) specifically limits the circumstances under which a respondent may seek affirmative relief. It states:

The appellate court will grant a respondent affirmative relief by modifying the decision which is the subject matter of the review only (1) if the respondent also seeks review of the decision by the timely filing of a notice of appeal or a notice of discretionary review, or (2) if demanded by the necessities of the case.

RAP 2.4(a) (emphasis added). The State did not file a notice of appeal, so there are two fundamental questions we must address. First, is the State's request for full resentencing affirmative relief? Second, if so, is the State excused from filing a notice of appeal because the relief it seeks is demanded by the necessities of this case?

I. The State's Request To Revoke Sims's SOSSA Constitutes Affirmative Relief

¶ 12 Affirmative relief “normally mean[s] a change in the final result at trial.” 2A Karl B. Tegland, Washington Practice: Rules Practice RAP 2.4 author's cmt. 3, at 174 (6th ed. 2004). While RAP 2.4(a) does not limit the scope of argument a respondent may make, it qualifies any relief sought by the respondent beyond affirmation of the lower court. See In re Arbitration of Doyle, 93 Wash.App. 120, 127, 966 P.2d 1279 (1998) (holding that, when a respondent “requests a partial reversal of the trial court's decision, he seeks affirmative relief”); cf. State v. McInally, 125 Wash.App. 854, 863, 106 P.3d 794 (2005) (“The State is entitled to argue any grounds to affirm the court's decision that are supported by the record, and is not required to cross-appeal.”). “[N]otice of cross-review is essential if the respondent ‘seeks affirmative relief as distinguished from the urging of additional grounds for affirmance.’ ” Robinson v. Khan, 89 Wash.App. 418, 420, 948 P.2d 1347 (1998) (quoting Phillips Bldg. Co. v. An, 81 Wash.App. 696, 700 n. 3, 915 P.2d 1146 (1996)). Here, Sims sought reversal of part of the trial court's order. Rather than arguing to affirm the order below, the State conceded error and sought more extensive reversal than what Sims requested as relief. Because the State is seeking partial reversal of a trial court order, not just advancing an alternative argument for affirming the trial court, it is seeking affirmative relief.

¶ 13 We also note that the trial court granted Sims a SSOSA over...