* In re Postsentence Review of: Kelli Lynn Milne

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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
In the Matter of the Postsentence Review of:
KELLI LYNN MILNE
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No. 36093-8-III
ORDER GRANTING
MOTION TO PUBLISH
THE COURT has considered the motion filed by Kelli Lynn Milne to publish our
January 17, 2019, opinion; the response of the Department of Corrections; and the record
and file herein;
IT IS ORDERED that the motion to publish is granted. The opinion filed by the
court on January 17, 2019, shall be modified on page one to designate it as a published
opinion and on page six by deletion of the following language:
A majority of the panel has determined this opinion will not be
printed in the Washington Appellate Reports, but it will be filed for public
record pursuant to RCW 2.06.040.
PANEL: Judges Pennell, Siddoway and Fearing
FOR THE COURT:
___________________________________
ROBERT LAWRENCE-BERREY
Chief Judge
FILED
FEBRUARY 28, 2019
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
In the Matter of the Postsentence Review
of:
KELLI LYNN MILNE
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No. 36093-8-III
UNPUBLISHED OPINION
PENNELL, A.C.J. — The Department of Corrections (DOC) petitions pursuant to
RCW 9.94A.585(7) for review of the sentence imposed on Kelli Lynn Milne as a result of
her 2017 Asotin County conviction for bail jumping. The DOC contends the trial court
erred by ordering Ms. Milne to complete 12 months of community custody in the event
she fails to complete or is administratively terminated from the special drug offender
sentencing alternative (DOSA) program. We grant the DOC’s petition and remand to the
superior court to strike the additional term of community custody.
FACTS AND PROCEDURE
On March 5, 2018, Ms. Milne pleaded guilty to one count of bail jumping, a class
C felony. The trial court imposed a prison-based DOSA sentence of 19 months’
confinement and 19 months’ community custody. The court also ordered Ms. Milne to
complete an additional 12 months of community custody in the event her DOSA sentence
was revoked.
FILED
JANUARY 17, 2019
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
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No. 36093-8-III
In re Postsentence Review of Milne
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Upon commencement of Ms. Milne’s incarceration, DOC personnel reviewed
her judgment and sentence and determined that the crime of conviction did not qualify
for an additional 12-month community custody term under RCW 9.94A.701. After
unsuccessfully attempting to resolve the issue at the trial court level, the DOC timely filed
this petition in accordance with RCW 9.94A.585(7) and RAP 16.18. Since Ms. Milne is
indigent, we appointed counsel for her as required under RAP 16.18(c).
ANALYSIS
The sole issue before us is whether the trial court exceeded its statutory sentencing
authority when it imposed an additional term of community custody in the event Ms.
Milne fails to complete her DOSA program.
Our scope of review in a postsentence review petition “shall be limited to errors of
law.” RCW 9.94A.585(7). Whether a sentencing court exceeded its statutory authority
under the Sentencing Reform Act of 1981 (SRA), chapter 9.94A RCW, is an issue of law
we review de novo. State v. Murray, 118 Wn. App. 518, 521, 77 P.3d 1188 (2003).
To the extent the issue implicates questions of statutory interpretation, review is also
de novo. State v. Eaton, 168 Wn.2d 476, 480, 229 P.3d 704 (2010). “The primary goal
of statutory construction is to carry out legislative intent. If a statute is plain and
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No. 36093-8-III
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unambiguous, its meaning must be primarily derived from the language itself.” Cockle v.
Dep't of Labor & Indus., 142 Wn.2d 801, 807, 16 P.3d 583 (2001) (citation omitted).
The DOC contends the trial court’s imposition of additional community custody
violates RCW 9.94A.701 because Ms. Milne’s underlying crime, bail jumping, does not
qualify for additional community custody. The State does not argue that the SRA
authorizes an additional term of community custody here. However, the State contends
remand is unnecessary because the additional 12-month term is clearly “superfluous” and
that the ripeness of this issue is in question since Ms. Milne to date has neither failed to
complete nor been terminated from the DOSA program. Response to Petition at 2.
As an initial matter, this issue is properly before this court. RCW 9.94A.585(7)
authorizes the DOC to petition for review of a sentence for errors of law, but requires any
such petition to be filed no later than ninety days after the DOC has actual knowledge of
the terms of the sentence. The State’s argument that the alleged sentencing error is not
ripe for review is not well taken, as the DOC is prevented by statute from raising this
issue at a later date.
RCW 9.94A.662 governs the terms of a prison-based DOSA sentence. It provides
in relevant part that such a sentence “shall include . . . [a] term of community custody
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No. 36093-8-III
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pursuant to RCW 9.94A.701 to be imposed upon the failure to complete or administrative
termination from the special [DOSA] program.” RCW 9.94A.662(1)(e).
RCW 9.94A.701 requires the sentencing court to impose a term of three years of
community custody for certain sex offenses and serious violent offenses, a term of
eighteen months for violent offenses, and a term of one year for crimes against persons as
defined in RCW 9.94A.411(2), certain convictions for unlawful possession of a firearm,
certain drug felony offenses, and felony failure to register. RCW 9.94A.701(1)-(3). The
statute further provides that if an offender is sentenced under a DOSA, then the court
shall impose community custody as provided in RCW 9.94A.660. RCW 9.94A.701(4).
RCW 9.94A.660 sets forth the criteria an offender must meet to be eligible for
a DOSA sentence. It also directs the court to sentence eligible offenders pursuant to
RCW 9.94A.662 (prison-based DOSA) and RCW 9.94A.664 (residential DOSA), both
of which provide that the DOSA must include a term of community custody equal to one-
half the midpoint of the standard sentence range. Although RCW 9.94A.660 authorizes
sentencing courts to impose community custody as part of a DOSA sentence, the statute
contains no language authorizing courts to impose an additional term of community
custody.
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No. 36093-8-III
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When these statutes are read together, it is clear that RCW 9.94A.662(1)(e)
authorizes a sentencing court to impose an additional term of community custody for
failure to complete a prison-based DOSA only where such term of community custody is
authorized by RCW 9.94A.701. Ms. Milne’s conviction for bail jumping does not qualify
for community custody under RCW 9.94A.701. Accordingly, the sentencing court erred
by imposing the additional 12 months of community custody in the event Ms. Milne fails
to complete her DOSA program.
The State contends that the inclusion of this additional term is clearly superfluous
in the face of the plain language of the judgment and sentence, which directs the DOC to
require Ms. Milne to serve 19 months in confinement followed by 19 months of
community custody. The judgment and sentence contains a section entitled
“ADDITIONAL TERM OF COMMUNITY CUSTODY UPON FAILURE TO
COMPLETE OR TERMINATION FROM ALTERNATIVE PROGRAM,” which
provides that “the following term of community custody is ordered and shall be imposed
upon the Defendant’s failure to complete or Defendant’s administrative termination from
the [DOSA] program. . . . Defendant shall serve 12 months in community custody.” Post
Sentence Petition, Ex. 1 at 5. Contrary to the State’s argument, the plain language of the
judgment and sentence indicates the trial court imposed an additional community custody
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No. 36093-8-III
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term on top of the prison-based DOSA sentence-a term that is authorized in certain
circumstances, but not here. The judgment and sentence, as written, orders the DOC to
impose this unauthorized additional community custody term in the event Ms. Milne fails
to complete her DOSA program, and the DOC may not arbitrarily correct or ignore this
erroneous term. Dress v. Dep't of Corr., 168 Wn. App. 319,325,279 P.3d 875 (2012).
CONCLUSION
We remand to the trial court to strike from the judgment and sentence the
additional 12-month term of community custody imposed for failure to complete or
termination from the DOSA program.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to
RCW 2.06.040.
Q.
Pennell, A.C.J.
WE CONCUR:
di. 	JFearing,~I
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