Post-sentence Petition Of Hagos Hapte Hadgu ( 2016 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION ONE
In the Matter of the Post-Sentence No. 74490-9-1
Review of
HAGOS HAPTE HADGU,
Respondent,
v.
STATE OF WASHINGTON, UNPUBLISHED OPINION en
Petitioner. FILED: February 16, 2016
PER CURIAM. The Department of Corrections (DOC) seeks post-sentence review
of a sentencing court's order allowing Hagos Hadgu to travel internationally while on
community custody for a sex offense. We conclude that the sentencing court modified
Hadgu's judgment and sentence in violation ofthe Sentencing Reform Act of 1981 (SRA),
chapter 9.94A RCW. We therefore grant DOC's petition and vacate the sentencing court's
order.
FACTS
In August 2005, Hadgu was convicted by a jury of rape of a child in the first
degree and was sentenced to 144 months confinement and 36 to 48 months of
community custody. Appendix H to Hadgu's judgment and sentence set forth the
conditions of community custody, including "[rjemain within geographic boundary, as set
forth in writing by the Department of Corrections."
In June 2014, Hadgu was released from confinement to community custody.
DOC provided Hadgu with a written list of community custody conditions that included:
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"[sjecure written permission from the Community Corrections Officer (CCO) before
leaving Washington State," "[rjemain within a geographic area as directed by the DOC
as follows: King County," and "[ojbtain written permission from the CCO before
travelling outside the county in which you reside, unless advised in writing by the CCO
that it is not necessary to do so."1
In July 2015, after failing to obtain permission from DOC, Hadgu petitioned the
sentencing court for permission to travel to Eritrea to visit his elderly, ailing mother.
Over the objection of DOC and the State, the sentencing court entered an order
allowing Hadgu to travel and tolling his supervision during the time he was to be out of
the country. The sentencing court expressed its belief "that there is some provision in
DOC guidelines where the DOC can alter a condition of a sentence for unusual
circumstances [and] I would intend to - to rely upon that in issuing an order that allows
Mr. Hadgu to travel to Eritrea."2 The sentencing court further stated:
I am not at all persuaded what I did here constitutes a "modification of
sentence." The court-imposed period of post-release supervision was not
altered but simply tolled for a short period in which Mr. Hadgu is permitted
to visit his aging and ailing mother in Eritrea.[3J
DOC filed a post-sentence petition seeking review of the sentencing court's order
under RCW 9.94A.585(7), arguing that the sentencing court acted without lawful
authority in modifying Hadgu's community custody provisions. A commissioner of this
1 As part of this petition, DOC also provided a copy of DOC Policy 380.650,
which states that "[t]ravel is prohibited outside of the 50 states or the District of
Columbia" for offenders on community custody." The policy does not contain any
exceptions to this provision.
2 Report of Proceedings (Sept. 1, 2015) at 17.
3 Letter from Judge William Downing to Assistant Attorney General Mandy Rose
dated 09/15/15 at 2.
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court stayed the sentencing court's order pending this court's review.4 For the reasons
below, we grant DOC's petition.
ANALYSIS
The SRA permits modification of sentences "only in specific, carefully delineated
circumstances."5 SRA sentences can be modified "only ifthey meet the requirements of
the SRA provisions relating directly to the modification of sentences."6 "Modification of
a judgment is not appropriate merely because it appears, wholly in retrospect, that a
different decision might have been preferable."7 These limitations also apply to
modifications of community custody provisions.8
RCW 9.94A.585(7) permits the State to file a petition challenging a post-
sentence modification of a judgment and sentence if the modification exceeds the
authority of the sentencing court.9 We review de novo whether a sentencing court
4 Hadgu subsequently moved to modify the commissioner's order of stay.
Because we grant the State's petition and vacate the sentencing court's order, we deny
his motion to modify. Upon vacation of the order, the stay will expire.
5 State v. Shove, 113 Wash. 2d 83, 86, 776 P.2d 132 (1989).
6 ]d, at 89.
7 l± at 88.
8 See. e.g..Wandellv.State, 175 Wash. App. 447, 451, 311 P.3d 28 (2013).
9 RCW 9.94A.585(7) requires the State to file such a petition within 90 days of
being notified of the terms of the sentence. Though Hadgu appears to contend that the
State failed to timely file its petition because Hadgu was sentenced in 2005, it is clear
that the State's petition was timely because itwas filed within 90 days of the sentencing
court's modification order. See, e.g., Wandell, 175 Wash. App. at 450; In re Post-
Sentence Review of Cage, 181 Wash. App. 588, 591, 326 P.3d 805 (2014).
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exceeded its statutory authority under the SRA.10 "When a trial court exceeds its
sentencing authority under the SRA, it commits reversible error."11
Hadgu argues that the sentencing court had authority to modify his sentence
based on RCW 9.94A.703, which provides that a court is required to order an offender
"to comply with any conditions imposed by the department under RCW 9.94A.704."12
But RCW 9.94.703 does not support Hadgu's claim. RCW 9.94A.704 authorizes DOC
to impose conditions related to risk to the community, including that the offender must
"[r]emain within prescribed geographical boundaries."13 Hadgu contends that the
authority to impose conditions under RCW 9.94A.703 "is shared by the sentencing
judge and DOC," thus giving the sentencing court the authority to modify geographical
boundaries.14 But here, the sentencing court ordered Hadgu to comply with the
boundaries set by DOC. RCW 9.94A.704 grants DOC the express authority to set
geographic boundaries for offenders on community custody. And the SRA contains no
express provision permitting the sentencing court to modify this authority it granted to
DOC. Therefore, the sentencing court lacked the statutory authority to modify Hadgu's
sentence, and abused its discretion in doing so.
Hadgu contends that DOC's refusal to allow him to leave the country violates
RCW 9.94A.704(6), which provides that DOC "may not impose conditions that are
10 State v. Smith, 159 Wash. App. 694, 699, 247 P.3d 775 (2011).
11 State v. Hale, 94 Wash. App. 46, 53, 971 P.2d 88 (1999).
12 We note that Hadgu committed his offense between 1997 and 2000, which
was before RCW 9.94A.703 took effect. Laws of 2008, ch. 231, § 9 (eff. Aug. 1, 2009).
13 RCW 9.94A.704(3)(b).
14 Respondent's Opposition to State's Post-Sentence Petition to Prevent Travel
filed 02/02/16 at 6.
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contrary to those ordered by the court and may not contravene or decrease court-
imposed conditions." But the sentencing court ordered Hadgu to comply with the
geographic boundaries set by DOC. The DOC conditions do not conflict with the
judgment and sentence.
Citing former RCW 9.94A. 120(11)(e) (2000), Hadgu contends that the legislature
has clearly given the sentencing court the express authority to modify community
custody provisions in certain circumstances. But former RCW 9.94A. 120(11)(e)
provided that "[a]t any time prior to the completion or termination of a sex offender's
term of community custody, if the court finds that public safety would be enhanced, the
court may impose and enforce an order extending any or all of the conditions imposed
pursuant to this section for a period up to the maximum allowable sentence for the
crime."15 But the trial court did not extend community custody.
Hadgu points to language in State v. Shove that a judgment and sentence "may
be vacated or altered ... in those limited circumstances where the interests of justice
most urgently require."16 Hadgu compares his case to State v. Smith in which the
defendant received a sentence of nine months in a work release program.17 The county
subsequently eliminated the work release program for budgetary reasons. This
constituted an extraordinary circumstance warranting modification of the sentence
because it was "unforeseeable and unanticipated" at the time of sentencing and the
sentencing court would not have imposed a nine-month sentence if it had expected the
15 (Emphasis added.) This language is currently codified at RCW 9.94A.709.
16 113 Wash. 2d 83, 88, 776 P.2d 132 (1989).
17 159 Wash. App. 694, 247 P.3d 775 (2011).
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sentence would be served in total confinement.18 But Hadgu's mother's advancing age
and illness is not equivalent to the unforeseeable elimination of work release in Smith,
and thus does not justify modifying Hadgu's sentence.19
Finally, Hadgu asserts that the sentencing court's order serves as "a writ of
habeas corpus addressed at the unreasonable restraint on Mr. Hadgu's right to travel."20
But Hadgu did not argue below, nor did the sentencing court conclude, that DOC's
geographical boundaries were an impermissible infringement on Hadgu's fundamental
right to travel. Hadgu's remedy, if any, is by way ofa personal restraint petition.21
We grant DOC's post-sentence petition and vacate the order modifying Hadgu's
judgment and sentence to permit Hadgu to travel internationally.
FOR THE COURT:
18 Jd, at 701.
19 To the extent that authorization for international travel is analogous to a
furlough from confinement, furloughs are within the exclusive authority of DOC. In re
Cage, 181 Wash. App. 588, 594, 326 P.3d 805 (2014).
20 Respondent's Opposition to State's Post-Sentence Petition to Prevent Travel
filed 02/02/16 at 13.
21 See RAP 16.4.