State v. Slattum

• Decision Date: 19 February 2013
• Docket Number: No. 67708–0–I.,67708–0–I.
• Citation: 295 P.3d 788,173 Wash.App. 640
• Parties: STATE of Washington, Appellant, v. Kevin Eugene SLATTUM, Respondent.
• Court: Washington Court of Appeals

173 Wash.App. 640

295 P.3d 788

STATE of Washington, Appellant,

v.Kevin Eugene SLATTUM, Respondent.

No. 67708–0–I.

Court of Appeals of Washington, Division 1.

Feb. 19, 2013.

Mary Kathleen Webber, Seth Aaron Fine, Snohomish County Prosecutor's Office, Everett, WA, for Appellant.

JacQualine McMurtrie, Anna M. Tolin, Innocence Project Northwest–UW Law, Seattle, WA, for Respondent.

LAU, J.

¶ 1 RCW 10.73.170 provides for state-funded postconviction DNA (deoxyribonucleic acid) testing to certain felons currently serving a “term of imprisonment.” Convicted sex offender Kevin Slattum moved for DNA testing after he completed his indeterminate minimum sentence prison time and while on community custody for life. The State opposed the motion, contending in part that the word “imprisonment” means the legislature intended to narrowly define eligibility for postconviction DNA testing only to felons actually serving a sentence in a jail or prison facility but not community custody. The trial court granted Slattum's motion. Because the word “imprisonment” in RCW 10.73.170 is ambiguous, the rule of lenity requires us to construe this statute strictly against the State in favor of Slattum. We affirm the trial court.¹

FACTS

¶ 2 Kevin Slattum, an Innocence Project Northwest client, moved for postconviction DNA testing in Snohomish County Superior Court under RCW 10.73.170, which allows felons “currently ... serving a term of imprisonment” to petition for such testing. RCW 10.73.170(1). Slattum filed his motion in June 2011 while serving an indeterminate life sentence for second degree rape of a child.² When Slattum filed the motion, he had completed his minimum term of 102 months of confinement in prison and was serving the lifelong community custody portion of his sentence.

¶ 3 Slattum's community custody terms require that he remain under the control and jurisdiction of the Department of Corrections (DOC) and the authority of the Indeterminate Sentence Review Board (ISRB) for any time remaining between the date of release from total confinement and before the expiration of the statutory maximum sentence. The sentencing court, DOC, and ISRB may impose community custody conditions. If an offender violates any condition or requirement of community custody, the ISRB may revoke the offender's release to community custody and impose sanctions, including confinementin prison for the remaining maximum term. Slattum's community custody terms require him to obey all laws and follow all DOC rules and regulations. Slattum must also comply with specific requirements relating to his conviction. Included are the requirements that Slattum

• Report to and be available for contact with his community corrections officer (CCO) and follow all of the CCO's verbal and written instructions;

• Reside in a location and under living arrangements approved by the CCO;

• Submit to searches of his person, residence, vehicle, and possessions whenever requested by the CCO;

• Remain within or outside geographic boundaries as directed;

• Obtain permission before leaving his county of residence;

• Obtain permission before leaving the State of Washington;

• Refrain from entering parks, playgrounds, schools, or any other place where children congregate;

• Refrain from entering bars, taverns, casinos, or any other location where alcohol is the primary item for sale;

• Submit to random urinalysis, breathalyzer, and plethysmographic testing.

¶ 4 The State objected to Slattum's motion for postconviction DNA testing. It claimed that RCW 10.73.170 applies only to felons currently serving a “term of imprisonment.” According to the State, Slattum was ineligible for postconviction DNA testing because he was not physically confined in prison. The trial court granted Slattum's motion for DNA testing, concluding that his community custody status satisfied RCW 10.73.170's “term of imprisonment” requirement. In its oral ruling, the court explained:

It seems to this court that to limit the access to DNA testing to those who are actually incarcerated is interpreting the statute too narrowly. It may be that an offender is no longer in total confinement, but, nevertheless, he or she is under the direct control of the Department of Corrections. And as I've already indicated, in fact, if he is then placed in total confinement because of a violation, he's given credit for time spent on community custody.

In this particular case, the community custody is [p]otentially for the life of the defendant. He has severe restrictions and restraints placed on him, and he has affirmative duties under the community custody, and for any violation the defendant faces the possibility of total confinement.

RP (July 29, 2011) at 38.

¶ 5 The court's written findings establish in relevant part:

8. The defendant has served the minimum prison sentence and is on community custody subject to the conditions set out in Appendix A of the judgment and sentence. Those restraints include restrictions on travel, restrictions on certain people he may have contact with, a requirement that he participate in treatment, and that he is subject to searches from the Department of Corrections.

9. If the defendant violates any of the conditions of his community custody he may be returned to confinement.

10. RCW 10.73.170 requires that an offender seeking post-conviction DNA testing at government expense be serving a term of imprisonment. That statute does not define the term “imprisoned.”

11. Pursuant to RCW 9.94A.030 “confinement” may be total or partial confinement.

12. Pursuant to RCW 9.94A.030, “community custody” is defined as “that portion of an offender's sentence of confinement in lieu of earned release time or imposed as part of a sentence under this chapter and served in the community subject to controls placed on the offender's movement and activities by the department.”

13. Pursuant to RCW 9.94A.633(2)(f), an offender sentenced to an indeterminate sentence pursuant to RCW 9.94A.507 may be transferred to a more restrictive confinement status for a violation of community custody and will receive credit for time served while on community custody. The Department of Corrections makes no distinction between confinement in prison and community custody when calculating good time credit. The Department of Corrections treats an offender on community custody as in a quasi-confinement status. The very name “community custody” implies a custody status. An offender may no longer be in total confinement but nevertheless be under direct control of the Department of Corrections.

The court concluded in its written ruling that Slattum qualified for DNA testing:

The defendant is serving a term of imprisonment within the meaning of RCW 10.73.170 because he is on community custody. The Legislature did not say that a petitioner must be incarcerated or totally confined. Rather, the Legislature chose a term which is broad enough to include someone who is currently serving a term of community custody.

¶ 6 The trial court denied the State's motion to stay DNA testing pending appeal. Because DNA testing subsequently occurred, the State concedes that the issue raised on appeal is moot. However, the State argues that the trial court's application of RCW 10.73.170 to an offender serving a term of community custody is a matter of substantial public interest.

ANALYSIS

Mootness

¶ 7 The parties agree the issue here is moot because DNA testing occurred. The State argues we should nevertheless review this case because it involves matters of continuing and substantial public interest. Specifically, the State contends that (1) “[t]he trial court's interpretation of [RCW 10.73.170] to include persons who are on community custody greatly expands the plain language of the statute;” (2) the trial court's interpretation “could result in an expenditure of funds far greater than intended by the Legislature”; and (3) this issue is likely to recur given the large number of requests for assistance the Innocence Project receives each month.³ Appellant's Br. at 8–9.

¶ 8 A case is moot “when it involves only abstract propositions or questions, the substantial questions in the trial court no longer exist, or a court can no longer provide effective relief.” Spokane Research & Def. Fund v. City of Spokane, 155 Wash.2d 89, 99, 117 P.3d 1117 (2005). However,

[A court] may decide a moot issue if it involves matters of continuing and substantial public interest.... To determine whether a case involves the requisite public interest, we consider (1) the public or private nature of the question presented, (2) the desirability of an authoritative determination to provide future guidance to public officers, and (3) the likelihood that the question will recur.

Thomas v. Lehman, 138 Wash.App. 618, 622, 158 P.3d 86 (2007) (citing In re Pers. Restraint of Mines, 146 Wash.2d 279, 285, 45 P.3d 535 (2002)). Mootness is a question of law reviewed de novo. Wash., State Commc'n Access Project v. Regal Cinemas, Inc., 173 Wash.App. 174, 293 P.3d 413, 429 (2012). ⁴

¶ 9 We conclude these criteria support review in this case. This is a statutory interpretation question concerning the court's authority to require postconviction DNA testing at public expense. The public has a substantial interest in questions involving expenditure of public funds. City of Seattle v. State, 100 Wash.2d 232, 237, 668 P.2d 1266 (1983) (holding as an alternative ground for considering a challenge to an expired city ordinance that “we believe a case involving the public financing and limiting of campaign expenditures for political candidates is of such public importance there is ‘continuing and substantial public interest’.”). The question is likely to recur given the restrictive nature of community custody and the numerous requests for assistance received by the Innocence Project. ⁵ We conclude that the issue here warrants review as a matter of continuing and substantial public interest.

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