State Of Washington, V Spencer Lawrence Oberg ( 2014 )

HLED
COURT OF APPEALS
DIV[ S1M4 Ti
2014 MAY - 6 AM 8: 28
IN THE COURT OF APPEALS OF THE STATE OF
Si 5 2 i0
DIVISION II BY
TY
STATE OF WASHINGTON, No. 43472 -5 -II
Respondent,
v.
Consolidated with No. 43479 -2 -II, 43482 -2 -II
SPENCER LAWRENCE OBERG, And
Appellant,
No. 44900 -5 -II
In re Personal Restraint Petition of
UNPUBLISHED OPINION
SPENCER LAWRENCE OBERG,
Petitioner.
HUNT, J. — Spencer Lawrence Oberg appeals his sentences and a community custody
condition requiring him to undergo drug and alcohol evaluation and treatment related to three
guilty plea convictions. He argues that ( 1) the Pierce County Superior Court failed to make the
statutorily required finding that a chemical dependency contributed to his offenses and there was
no evidence that alcohol was a factor in the current offenses, prerequisites for the drug and
alcohol related community custody condition of his sentences; and ( 2) his total sentence for his
third degree assault conviction exceeds the 60 -month statutory maximum for that offense. In a
pro se Statement of Additional Grounds for Review' ( SAG), Oberg asserts that ( 1) the superior
court erred in imposing a consecutive sentence, in violation of a global plea agreement
1
RAP 10. 10.
No. 43472 -5 -II (consolidated with Nos. 43479 -2 -II, 43482 -2 -II and 44900 -5 -II)
encompassing both. Pierce County' s and King County' s charges; ( 2) the State breached this
agreement by failing to advise the superior court that it was bound by the global plea agreement,
suggesting that his King County convictions for charges that were part of the global plea
2
agreement were " separate " offenses, failing to list the King County convictions as " other current
3
offenses " on the plea statements and the judgment and sentences, and misrepresenting the jail -
time credit to which Oberg was entitled under the global plea agreement; ( 3) the superior court
erred in not awarding him full crediffor his time served; and ( 4) his plea statements incorrectly
4
stated that he was ineligible for a Drug Offender Sentencing Alternative ( DOSA) sentence.
Finally, in a personal restraint petition ( PRP), which we consolidated with this direct appeal,
Oberg essentially repeats the claims he makes in his SAG.
The State concedes that Oberg' s third degree assault sentence exceeds the statutory
maximum for that offense and that remand for resentencing on this conviction is required; we
accept this partial concession. Because the record contains no evidence that alcohol was a factor
in Oberg' s convictions, we also hold that the superior court erred in imposing alcohol related
community custody conditions. Accordingly; we remand to the- superior court- to resentence
Oberg on the third degree assault conviction and to strike the alcohol related community custody
conditions in the judgments and sentences for cause numbers 10 -1- 03778 -2 and 11 - 1- 02533 -2.
2SAGat2.
3 SAG at 2.
4
RCW 9. 94A.660( 1).
2
No. 43472 -5 -II (consolidated with Nos. 43479 -2 -II, 43482 -2 -II and 44900 -5 -II)
We otherwise affirm Oberg' s sentences and his drug -related community custody condition. And
we deny his personal restraint petition.
FACTS
I. PIERCE COUNTY AND KING COUNTY PLEA AGREEMENTS
In September 2010, the Pierce County prosecutor charged Spencer Lawrence Oberg with
unlawful possession of a controlled substance ( methadone) and unlawful possession of a
controlled substance ( oxycodone) under Pierce County cause number 10 -1- 03778 -2. In January
2011, the Pierce County prosecutor charged Oberg with residential burglary and third degree
malicious mischief under cause number 11 - 1- 00523 -4. And in June 2011, the Pierce County
prosecutor charged Oberg with obtaining or attempting to obtain a controlled substance
oxycodone) by fraud, deceit, or misrepresentation; unlawful possession of a controlled
substance ( oxycodone); third degree assault of a law enforcement officer; and possession of
anther' s identification under cause number 11 - 1- 02533 -2. During this same time period, Oberg
committed a series of offenses in King County, which resulted in several additional charges
under two separate King County cause numbers ( 11 =1- 06655 = and 11 - 1- 06585 -1):
6
Oberg entered into several plea agreements to resolve all charges in both counties. On
November 15, 2011, Oberg agreed to enter Alford Newtons pleas to the following amended
/
Pierce County charges and the State agreed to recommend the following sentences:
1) residential burglary - 84 months ( cause number 11 - 1- 00523 -4);
s
North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 ( 1970) ( a defendant may
plead guilty while disputing the facts alleged by the prosecution); State v. Newton, 87 Wash. 2d
363, 552 P.2d 682 ( 1976).
3
No. 43472 -5 -II (consolidated with Nos. 43479 -2 -II, 43482 -2 -II and 44900 -5 -II)
2) obtaining or attempting to obtain a controlled substance by fraud, deceit, or
misrepresentation - 24 months, and third degree assault - 51 months ( cause
number 11 - 1- 02533 -2); and
3) second degree identity theft- 57 months, and unlawful possession of a controlled
substance ( oxycodone) - 24 months ( cause number 10 -1- 03778 -2).
The State further agreed to recommend that ( 1) these sentences run concurrently with
each other and with the King County sentences; ( 2) Oberg receive credit for time served; and ( 3)
the superior court impose " drug /alcohol treatment per [ community corrections officer] CCO" for
cause numbers 10 -1- 03778 -2 and 11 - 1- 02533 -2. Clerk' s Papers ( CP) at 39, 98. Each
Statement of Defendant on Plea of Guilty" advised Oberg, " The judge does not have to follow
anyone' s recommendation as to sentence." CP at 39, 98 ( emphasis omitted). Each of the
attached offender score stipulations listed the King County offenses as " convictions" rather than
other current offenses." CP at 16, 46, 107.
II. GUILTY PLEAS AND SENTENCING
On November 15, 2011, Oberg pled guilty to the amended Pierce County charges.
Oberg' s counsel advised the superior court that the pleas were all AlfordlNewton pleas and that
they represented a " global resolution" that also included the two King County cases noted in the
Oberg' s guilty plea statements. Report of Proceedings ( RP) at 3. The State also told the superior
court that " Mr. Oberg has already pled guilty and been sentenced on two separate felony cause
4
No. 43472 -5 -II (consolidated with Nos. 43479 -2 -II, 43482 -2 -II and 44900 -5 -II)
numbers up in King County. "6 RP at 4.
The superior court then engaged in an extensive colloquy, during which Oberg confirmed
that he had reviewed the Statements of Defendant on Plea of Guilty with his counsel, that he had
read the documents himself, and that he had no questions about these documents. The superior
court then reviewed with Oberg each of the charges under each cause number, the standard
sentencing ranges for each charge, and the State' s sentencing recommendations ( 1) to run the
Pierce County sentences concurrently with all other Pierce County sentences and with the
previously imposed King County sentences, and ( 2) that Oberg " get a drug and alcohol
evaluation and treatment according to the community corrections officer." RP at 8. Oberg
acknowledged that he understood the State' s recommendations. RP at 8. For each charge, the
superior court advised Oberg .that it was not bound by the State' s sentencing recommendations
and that it (the court) could impose consecutive sentences; Oberg also stated that he understood
this. Oberg then pled guilty to each of the charges. The superior court accepted his pleas and
proceeded to sentencing.
During sentencing, the State ( 1) noted Oberg' s numerous previous offenses; ( 2) advised
the superior court that Oberg had unsuccessfully participated in both the Pierce County Drug
Court Program and a DOSA program through the Department of Corrections; ( 3) stated, " Not
6 On November 4, 2011, the King County Superior Court sentenced Oberg to a total of 76
months of confinement for ( 1) two counts of forged prescriptions ( oxycodone) and one count of
unlawful possession of a controlled substance ( methamphetamine) under cause number 11 - 1-
06585- 1; and ( 2) two additional counts of forged prescriptions ( oxycodone), one count
possession of stolen firearm, and one count of second degree identity theft, under cause number
11 - 1- 06655 -6. The King County Superior ran all sentences concurrently and noted that these
sentences should also run concurrently with the Pierce County sentences.
5
No. 43472 -5 -II (consolidated with Nos. 43479 -2 -1I, 43482 -2 -II and 44900 -5 -II)
only is [ Oberg] young, but it is obvious that controlled substances have had a pretty significant
hold on him "; and ( 4) recommended a " high end," 84 -month sentence based on Oberg' s
extensive criminal history and " that he was basically on a crime spree happening over two
different counties." RP at 18, 19. When the superior court asked what Oberg' s King County
sentences were, the State responded that King County had given Oberg 76 months.
7; (
Defense counsel ( 1) presented the " agreed recommendation of 84 months" 2)
acknowledged that over time, as the charges had increased in number, "[ i]t became really
8; (
apparent in this case that drug addiction was pushing this thing " 3) commented that "[ e] very
drugs9;
time [ Oberg] got arrested" he was carrying and ( 4) stated:
What I' m asking the Court to impose,
don' t go beyond any sort of
consecutive sentences, keep it at 84 months, the maximum concurrent as the
global offer thing. Anything the Court can do to make sure that Mr. Oberg gets
some additional treatment, whatever resources are available for him to do that.
RP at 25. Oberg' s wife asked the superior court to allow Oberg to have treatment and to
sentence him to 76 months, like the King County court had done, " because of the drug problems
that he has." RP at 22. Oberg similarly acknowledged his substance abuse issues.
The superior court commented extensively on Oberg' s young age ( 23), criminal history
24 or 25 felonies), family support, drug use ( including failed drug court), and the following
sentencing considerations:
7RPat20.
8
RP at 23.
9RPat24.
No. 43472 -5 -II (consolidated with Nos. 43479 -2 -II, 43482 -2 -II and 44900 -5 -II)
I am also troubled by the sheer volume of the crimes here, and in this
particular case what is an ongoing pattern of you being under the supervision of
the court and being out committing crimes on multiple occasions, not only here in
Pierce County, but also in King County. ... Basically what I' m being asked to
do is to wrap up what would be 12 felonies into one sentence, 76 months, which is
about six months a felony, on top of somebody who has already maxed out, even
before you consider those.
I understand the work that has gone into this by your attorney, by the
prosecutors in Pierce County and King County. Some judge has to put the first
number up, and apparently the judge in King County has with 76 months. The
second judge then has the option of going along with the concurrent sentence or
doing a consecutive sentence. That' s my decision here today.
I guess the bottom line is I don' t think 76 months is enough for everything
that has gone on here. What I' m going to do is on the cause number that ends in
78 -2, Count I, the range is 43 to 57 months. I' m going to impose 43 months. I
am going to run that consecutive to the King County cause numbers. The other
counts, the other sentences, would be as recommended, to be concurrent, so the
bottom line would be that it would be an additional 43 months for these five
felonies that were committed here in Pierce County.
RP at 31 -33 ( emphasis added).
The superior court sentenced Oberg to ( 1) 84 months of confinement for residential
burglary; ( 2) 24 months for obtaining or attempting to obtain a controlled substance by fraud,
deceit, or misrepresentation; ( 3) 5 -
1 months for third degree assault; ( 4) 43 months for second
degree identity theft; and ( 5) 24 months for unlawful possession of a controlled substance. The
superior court ran the 43 -month sentence on the second degree identity theft consecutively to
Oberg' s 76 -month King County sentences; it ran the remaining sentences concurrently with each
other and with the King County sentences.
In addition to the 51 -month sentence for third degree assault ( cause number 11- 1- 02533-
2), the superior court imposed 12 months of community custody, noting that the total term of
confinement for this conviction should not exceed the 60 -month statutory maximum. The
No. 43472 -5 -II (consolidated with Nos. 43479 -2 -II, 43482 -2 -II and 44900 -5 -II)
superior court also ordered Oberg to submit to " Drug /Alcohol evaluation and treatment per
CCO" under cause numbers 10 -1- 03778 -2 ( second degree identity theft and unlawful possession
of a controlled substance ( oxycodone)) and 11 - 1- 02533 -2 ( obtaining or attempting to obtain a
controlled substance by fraud, deceit or misrepresentation; and third degree assault), and gave
him 8 days credit for time served under each cause number. CP at 60, 116.
Oberg appeals his consecutive sentences for second degree identity theft, his third degree
assault sentence, the drug and alcohol evaluation and treatment community custody
requirements, and the credit he received for time served.
ANALYSIS
I. SENTENCE IN EXCESS OF STATUTORY MAXIMUM
Oberg argues that the superior court erred when it sentenced him to 51 months plus 12
months of community custody for third degree assault because the total sentence exceeded the
60 -month statutory maximum for this offense and the court' s notation limiting his total
confinement to 60 months was not sufficient to cure this error. The State concedes that under
our Supreme Court' s decision in State v.. Boyd, 1-74 Wn.2d 470, 472 -
73, 275 P.3d 321 ( 2012), -
10
this " Brooks notation " no longer operates to ensure the sentence' s validity. We agree with
to
A " Brooks notation" is a hand -
written addition to the judgment and sentence stating that the
total combined term of confinement and community custody actually served may not exceed the
statutory maximum. In re Pers. Restraint ofBrooks, 166 Wash. 2d 664, 674, 211 P.3d 1023 ( 2009),
superseded by Boyd, 174 Wash. 2d at 472 -73.
8
No. 43472 -5 -II (consolidated with Nos. 43479 -2 -II, 43482 -2 -II and 44900 -5 -II)
11
Oberg, accept the State' s concession, and remand for resentencing.
II. COMMUNITY CUSTODY CONDITIONS
Oberg further argues that the superior court erred by requiring him to undergo drug and
alcohol evaluations and treatment as a community custody condition related to his convictions
under cause numbers 10 -1- 03778 -2 ( second degree identity theft and unlawful possession of
oxycodone) and 11 - 1- 02533 -2 ( obtaining or attempting to obtain a controlled substance by fraud,
deceit, or misrepresentation and third degree assault) because the superior court failed to make
an express finding, under RCW 9. 94A. 607( 1), that he had a chemical dependency that
contributed to these offenses. 12 The State counters that ( 1) a finding that drug use contributed to
13; (
Oberg' s crimes " was implicit in the court' s statements to defendant " 2) the plain language of
RCW 9. 94A.607( 1) does not require the court to use any specific language; thus ( 3) the court' s
11 The superior court' s total sentence of 63 months for Oberg' s third degree assault conviction
exceeded the 60 -month statutory maximum by 3 months. RCW 9A.20. 021; RCW 9A.36. 031( 2).
Applying Boyd here, the sentencing court must reduce the term of community custody so that the
confinement combined with the community custody term does not exceed the statutory
maximum. Boyd, 174 Wash. 2d at 472.
12 The superior court did not impose community custody under the remaining cause number.
13
Br. of Resp' t at 5. We agree with the State that Oberg misinterprets our decision in State v.
Jones, 118 Wn. App. 199, 204, 76 P.3d 258 ( 2003), as requiring the superior court to make an
explicitfinding. In Jones, we addressed only whether the trial court had authority to order the
defendant to participate in mental health treatment and counseling, which involved statutory
procedures specific to mental health evaluation and treatment that do not apply here. Jones, 118
Wash. App. at 208, 209 ( citing former RCW 9. 94A. 505( 9) ( 2001)). Contrary to Oberg' s argument,
Jones does not require that the superior court' s findings be " express "; nor does it discredit the
factors on which we rely above to satisfy RCW 9. 94A.607( 1).
9
No. 43472 -5 -II (consolidated with Nos. 43479 -2 -II, 43482 -2 -II and 44900 -5 -II)
14
implicit finding is sufficient to support the community custody condition. We agree with the
State that the superior court' s findings were sufficient to support the drug evaluation and
treatment community custody condition imposed under RCW 9. 94A. 607( 1). But we agree with
Oberg that the superior court did not make findings sufficient to support the alcohol -
related
condition.
A. Standard of Review
A defendant may challenge an illegal or erroneous sentence for the first time on appeal.
State v. Bahl, 164 Wash. 2d 739, 744, 193 P.3d 678 ( 2008); Jones, 118 Wn. App. at 204. We
review de novo whether the trial court had statutory authority to impose community custody
conditions. State v. Armendariz, 160 Wash. 2d 106, 110, 156 P.3d 201 ( 2007). If the condition was
statutorily authorized, we review the imposition of crime -related prohibitions for abuse of
discretion. Armendariz, 160 Wash. 2d at 110 ( citing State v. Ancira, 107 Wash. App. 650, 653, 27
P.3d 1246 ( 2001)). We apply these standards separately to the drug and alcohol related
conditions imposed here.
B. Drug Evaluation and /or Treatment
RCW 9. 94A.607( 1) provides:
Where the court finds that the offender has a chemical dependency that
has contributed to his or her offense, the court may, as a condition of the sentence
and subject to available resources, order the offender to participate in
rehabilitative programs or otherwise to perform affirmative conduct reasonably
related to the circumstances of the crime for which the offender has been
14
The State does not discuss the drug and alcohol related conditions separately. Nor does it
acknowledge that the superior court made an express written finding supporting drug evaluation
and treatment in cause number 11 - 1- 02533 -2' s judgment and sentence ( obtaining or attempting
to obtain a controlled substance by fraud, deceit, or misrepresentation and third degree assault).
10
No. 43472 -5 -II (consolidated with Nos. 43479 -2 -II, 43482 -2 -II and 44900 -5 -II)
convicted and reasonably necessary or beneficial to the offender and the
community in rehabilitating the offender.
Emphasis added.)
Cause number 11 - 1- 02533 -2' s judgment and sentence for Oberg' s obtaining or
attempting to obtain a controlled substance by fraud, deceit, or misrepresentation and third
degree assault convictions includes an express written finding supporting the drug evaluation and
treatment condition: " The court finds that the offender has a chemical dependency that has
contributed to the offense( s)." CP at 51. Thus, the court clearly complied with RCW
9. 94A.607( 1) as to this cause number.
In contrast, the judgment and sentence for cause number 10 -1- 03778 -2 ( second degree
identity theft and unlawful possession of oxycodone) contains no finding about whether Oberg
has a chemical dependency that contributed to these offenses. Accordingly, we must determine
whether the superior court satisfied this finding requirement some other way. Although RCW
9. 94A. 607( 1) requires the superior court to " find" that Oberg had a chemical dependency that
contributed to his offenses, the State is correct that the statute does not specify what type of
Here, ( 1) Oberg to having a substance abuse problem; ( 2)
finding the court must make. admitted
the parties and the court discussed at length how Oberg' s drug use contributed to his offenses;
3) the record clearly establishes that the court found that Oberg had a chemical dependency and
that this chemical dependency was a, if not the, driving force behind his offenses; and ( 4) the
nature of the charges clearly reflect that drug use contributed to Oberg' s offenses because the
charges were all related to drug offenses. We hold that in this context it is clear that the superior
court made the required finding.
11
No. 43472 -5 -II (consolidated with Nos. 43479 -2 -II, 43482 -2 -II and 44900 -5 -II)
Accordingly, we affirm the community custody condition requiring Oberg to undergo
drug evaluations and treatment under cause numbers 11 - 1- 02533 -2 and 10 -1- 03778 -2.
C. Alcohol Evaluation and /or Treatment
Unlike the drug -related condition, nothing in the record suggests that the superior court
made any findings about whether Oberg' s alcohol use contributed to his offenses. Nor is there
any independent evidence of such a relationship. Because the record does not support the
alcohol evaluation and treatment condition, we remand to the superior court to strike this
alcohol -related portion of Oberg' s community custody conditions in cause numbers 10- 1- 03778-
15
2 and 11 - 1- 02533 -2. See Jones, 118 Wash. App. at 207 -08.
III. SAG AND PRP ISSUES
Most of Oberg' s PRP repeats the issues he raises in his SAG. Therefore, unless
otherwise noted, we address these issues together.
A. Consecutive Sentence
Oberg challenges his consecutive sentence under cause number 10 -1- 03778 -2. He asserts
that ( 1) the superior court violated the global- plea- agreement by imposing the consecutive
sentence; ( 2) the State breached the plea agreement by not reminding the court that it was bound
by the plea agreement and failing to state in his ( Oberg' s) criminal history that the King County
15 The State requests that we strike the superior court' s notation " Drug / lcohol eval. and follow
A
up treatment recommended" under section 4.4 " OTHER" of the judgment and sentence in cause
number 11 - 1- 02533 -2, because the treatment recommendation does not relate to property held in
evidence. Br. of Resp' t at 7 ( note 3) ( quoting CP at 54). Instead, as we discuss above, the
superior court need strike only the reference to alcohol in section 4.4, leaving the drug evaluation
and treatment recommendation intact.
12
No. 43472 -5 -II (consolidated with Nos. 43479 -2 -II, 43482 -2 -II and 44900 -5 -II)
convictions were other current offenses; and ( 3) if the superior court did not err, his guilty pleas
were not knowing, intelligent, and voluntary because he was advised that the superior court was
required to impose consecutive sentences under the global plea agreement. These assertions lack
merit.16
Every document related to Oberg' s pleas clearly states that the State would recommend
concurrent sentences. Nothing in the record shows otherwise. 17 Almost every plea document
states that the superior court was not bound by this agreed sentencing recommendation. And the
Superior Court' s plea colloquy with Oberg shows that concurrent sentencing was a mere
recommendation, which that the court was not required to follow.
Similarly, the record does not support Oberg' s contention that the State breached the plea
agreement. On the contrary, as agreed, the State clearly recommended that the superior court
impose concurrent sentences, and the superior court understood that this was the State' s
recommendation. Nor does the record supports Oberg' s assertion that he was not advised that
the superior court could ignore the State' s recommendation. Again, ( 1) all the relevant
documents that Oberg signed warned him that the sentencing court was notbound by the State' s
sentencing recommendation; ( 2) the Pierce County Superior Court specifically advised him
during the plea colloquy that it was not bound by any part of the agreed recommendation,
16 Because we consider the documents Oberg attached to his PRP, we need not address his PRP
reply request for an order to produce certified records.
17
In his PRP, Oberg specifically asserts that a September 2, 2011 King County memorandum
stated that the concurrent sentencing aspect of his plea agreement was not merely a sentencing
recommendation. Oberg is incorrect: This memorandum expressly stated that the concurrent
sentencing aspect of the plea was part of the " [ agreed sentencing recommendation." PRP
Attach. 1, Ex. A at 2.
13
No. 43472 -5 -I1 ( consolidated with Nos. 43479 -2 -1I, 43482 -2 -11 and 44900 -5 -I1)
including the concurrent sentence recommendation; and ( 3) Oberg assured the superior court that
he understood this.
B. No Exceptional Sentence'
Oberg also argues that the superior court erred by imposing the consecutive sentence
without finding any aggravating factors to support an exceptional sentence. We disagree. The
Pierce County Superior Court ran the sentences for all of the Pierce County convictions ( entered
on the same day) concurrently, in compliance with RCW 9. 94A.589( 1)( a). Because the
consecutive sentence was solely in relation to the King County convictions, which the King
County Superior Court had previously entered on a different day, the consecutive sentence was
18
not an exceptional one that required aggravating factors for support. Accordingly, the Pierce
County Superior Court did not violate RCW 9. 94A.589( 1)( a).
C. Credit for Time Served
Oberg next challenges the superior court' s award of only eight days of jail time credit,
claiming that the plea agreement required the superior court to give him credit for all time served
18
See, in contrast, In re Pers. Restraint ofFinstad, 177 Wash. 2d 501, 507 -08, 301 P.3d 450 ( 2013)
RCW 9. 94A.589( 1)( a) requires sentencing court to impose concurrent sentences for convictions
entered or sentenced on the same day unless imposing exceptional sentence under RCW
9. 94A. 535).
14
No. 43472 -5 -I1 ( consolidated with Nos. 43479 -2 -I1, 43482 -2 -1I and 44900 -5 -11)
19
since his arrest on July 13, 2011. This challenge also fails. As we have already explained, the
superior court was not bound by the plea agreement' s sentencing recommendation, and the
record shows that Oberg was aware of that fact.
Nor does Oberg show that the superior court failed to comply with RCW 9. 94A.505( 6),
which provides: " The sentencing court shall give the offender credit for all confinement time
served before the sentencing if that confinement was solely in regard to the offense for which the
offender is being sentenced." Under this statute, the Pierce County Superior Court had authority
to give Oberg credit for time he had served on only the Pierce County charges for which it was
sentencing him, not for time served in connection with other charges, including those in King
County.
D. DOSA ELIGIBILITY
Finally, Oberg argues that his " eligibility for DOSA is improperly stricken from the
Pierce County plea statements as he is eligible for a DOSA sentencing alternative." SAG at 3.
19
Oberg also asserts that the State breached the plea agreement by writing on the judgment and
sentence that he was to receive eight - days credit for time served. But whether the State entered
this notation on the judgment and sentence is outside the record before us. Accordingly, we do
not address this assertion. State v. McFarland, 127 Wash. 2d 322, 335, 899 P.2d 1251 ( 1995).
In its response to Oberg' s PRP, the State argues that the court erred in awarding Oberg
credit for eight days of time served when he received credit for the King County convictions and
was serving those sentences in the Pierce County jail pending the November 15 hearing.
Because a personal restraint petition is intended to allow a petitioner, and not the State, to seek
relief from improper restraint, see RAP 16. 6( a), and the State does not raise this issue in a cross
appeal, we decline to address it.
15
No. 43472 -5 -II (consolidated with Nos. 43479 -2 -II, 43482 -2 -II and 44900 -5 -II)
20
Whether Oberg could qualify for a DOSA sentence is outside the record before us.
Accordingly, we need not address this assertion. McFarland, 127 Wash. 2d at 335.
We remand for resentencing on the third degree assault conviction ( cause number 11 - 1-
02533- 2) and to strike the alcohol related community custody conditions related to the second
degree identity theft and unlawful possession of oxycodone convictions ( cause number 10 -1-
03778- 2) and to the obtaining or attempting to obtain a controlled substance by fraud, deceit, or
misrepresentation and third degree assault convictions ( cause number 11 - 1- 02533 -2). We
otherwise affirm Oberg' s sentences, including his drug -related community custody condition;
and we deny his personal restraint petition.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW
2. 06. 040, it is so ordered.
We concur:
20 Moreover, because the State did not recommend and Oberg did not request a DOSA, his
DOSA eligibility is irrelevant.
16