State Of Washington v. Donnie W. Durrett ( 2014 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
No. 69924-5-
Respondent,
DIVISION ONE
UNPUBLISHED OPINION
DONNIE W. DURRETT,
Appellant. FILED: June 2, 2014
Appelwick, J. — Durrett alleges that the trial court violated his right to be present
and right to counsel by setting his community custody term without Durrett or his attorney
present. His sentence had been remanded solely for entry of a community custody period
consistent with RCW 9.94A.701(9). This does not require an exercise of discretion
triggering a right to be present. We affirm.
FACTS
Donnie Durrett was convicted of failure to register as a sex offender.1 He was
sentenced to 43 months in the custody of the Department of Corrections (DOC). The trial
court also imposed community custody for the statutory range of 36 to 48 months. The
court included a notation stating that "[t]he total term of incarceration and community
custody cannot exceed a combined term of 60 months."
1 Durrett was originally convicted of two counts of failure to register as a sex
offender. This court ultimately reversed one of his convictions as a violation of double
jeopardy. State v. Durrett, 150 Wash. App. 402, 404, 208 P.3d 1174 (2009). This appeal
arises from the sentence associated with the remaining conviction.
No. 69924-5-1/2
Durrett appealed, arguing that the trial court erred in imposing a sentence that
exceeded the statutory maximum of 60 months. State v. Durrett, 150 Wash. App. 402, 411-
12, 208 P.3d 1174 (2009). The State countered that Durrett's sentence was valid,
because the court's notation restricted the total term to 60 months. id, at 412. This court
concluded that the sentence was indeterminate and therefore invalid. Id. We remanded
for entry of a fixed sentence. See id. at 413.
On remand, the trial court again sentenced Durrett to 43 months in custody. Italso
again imposed community custody. This time, the court struck the reference to the
statutory 36 month term and noted once more that "[t]he total term of incarceration and
community custody cannot exceed a combined term of 60 months."
Durrett appealed a second time, arguing that the court failed to enter a fixed term
of community custody as directed. State v. Durrett, noted at 170 Wash. App. 1018, 2012
WL 3815085, at *2. The State conceded error and acknowledged that Durrett's term of
community custody must be limited to 17 months so as not to exceed the statutory
maximum. We accepted the State's concession and remanded "solely for entry of a
community custody period consistent with RCW 9.94A.701(9).^ The trial court's
resentencing decision is otherwise affirmed." Id.
On the second remand, the trial court entered an order amending the judgment
and sentence as to the term of community custody only. It did not hold a hearing or
consider argument from Durrett. It struck the language that "[t]he total term of
2"The term of community custody specified by this section shall be reduced by the
court whenever an offender's standard range term of confinement in combination with the
term of community custody exceeds the statutory maximum for the crime as provided in
RCW9A.20.021." RCW9.94A.701(9).
No. 69924-5-1/3
incarceration and community custody cannot exceed a combined term of 60 months" and
ordered that the total term of community custody was 17 months.
Durrett again appeals.
DISCUSSION
I. Right to Be Present and Right to Counsel
Durrett argues that that the trial court erred in amending the judgment and
sentence without him or his attorney present. He contends that this violated his right to
be present and right to counsel. The State counters that the trial court's action was merely
ministerial and thus triggered no constitutional protections.
Criminal defendants have the right to appear and defend themselves in person or
by counsel. Wash. Const, art. I, § 22; see also U.S. Const, amend. XIV ("[N]or shall any
state deprive any person of life, liberty, or property, without due process of law."). The
constitutional rightto be present extends to every "critical stage" of the proceedings. State
v. Heddrick, 166 Wash. 2d 898, 909-10, 215 P.3d 201 (2009). A critical stage is one in which
the outcome of the case is substantially affected. See id. at 910. This includes
sentencing. State v. Robinson, 153 Wash. 2d 689, 694, 107 P.3d 90 (2005). The right to
be present also applies at resentencing, ifthe court has discretion to determine the length
of the new sentence. See State v. Davenport, 140 Wash. App. 925, 932, 167 P.3d 1221
(2007). But, where the court merely makes a ministerial correction, the right to be present
does not apply. State v. Ramos, 171 Wash. 2d 46, 48, 246 P.3d 811 (2011).
In Ramos, the appellant argued that the term of his community placement was too
vague. Id. at 48. The Court of Appeals remanded for correction of his sentence to state
No. 69924-5-1/4
the specific length of community placement, jd. at 49. It further directed the trial court to
specify the "'special terms'" of the placement, jd. The Supreme Court found that this
required the trial court to exercise discretion. ]d. It reasoned that, had the Court of
Appeals merely directed the trial court to state the specific term of community placement,
there would have been no exercise of discretion, because the term was dictated by
statute. Id But, the trial court has discretion over special terms, and the Court of Appeals
necessarily required it to exercise that discretion, jd. Ramos thus had the right to be
present at resentencing. ]cL
The State contends that here, unlike in Ramos, this court's mandate did not allow
the trial court to exercise discretion when it entered the order amending Durrett's
judgment and sentence. The State emphasizes that we remanded "solely for entry of a
community custody period consistent with RCW 9.94A.701(9)." Durrett, 2012 WL
3815085, at *2 (emphasis added).
RCW 9.94A.701 was enacted in 2008. Laws of 2008, ch. 231, § 7 Durrett failed
to register as a sex offender from December 2006 to January 2007. His conduct predates
the statute.
Nonetheless, we agree with the State that the trial court lacked discretion on
remand. Durrett was convicted under former RCW 9A.44.130 (2006). The statutory
scheme at the time provided that, if an offender failed to register under former RCW
9A.44.130, "the court shall impose a term of community custody under [former] RCW
9.94A.715 [(2006)]." Former RCW 9.94A.545(2) (2006). That section in turn mandated
No. 69924-5-1/5
that, when the court sentenced a person to DOC custody for a sex offense,3 it must also
sentence that person to community custody for the range established under former RCW
9.94A.850 (2005) or up to the period of earned release, whichever was longer. Former
RCW9.94A.715(1).
The statutory community custody range for a sex offense was 36 to 48 months.
Former WAC 437-20-010 (2005). This range, combined with Durrett's 43 months of DOC
custody, exceeded the statutory maximum of 60 months. Accordingly, the trial court was
compelled to reduce Durrett's community custody term. Former RCW 9.94A.715(1)
directed the court to impose "whichever is longer" of the possible community custody
terms. This was restrictive language. It required the court to impose a community custody
term that, in conjunction with his DOC custody, met the statutory maximum. When the
court amended Durrett's judgment and sentence, its action was thus merely ministerial.
3 In his first statement of additional grounds, Durrett argues that failure to register
as a sex offender was not a sex offense under RCW 9A.44.130. He cites to former RCW
9.94A.030(42)(a)(i) (2006), which defined "sex offense" as a "felony that is a violation of
chapter 9A.44 RCW other than RCW 9A.44.130(11)." Former RCW 9A.44.130(11)
established the penalty for failing to register as a sex offender.
While Durrett is technically correct, his argument fails under State v. Castillo, 144
Wash. App. 584, 183 P.3d 355 (2008) and State v. Albright, 144 Wash. App. 566, 183 P.3d
1094 (2008). These cases recognize that a clerical error was to blame for the exclusion
of failure to register as a sex offender from the definition of "sex offense." Castillo, 144
Wash. App. at 591-92; Albright, 144 Wash. App. at 571. Former RCW 9A.44.130 (2005)
exempted failure to register as a kidnapper from the definition of "sex offense." Laws of
2005, ch. 380, § 1. In 2006, the legislature added a new section to the statute and
renumbered the subsequent provisions. Laws of 2006, ch. 129, § 2. However, the
legislature failed to amend RCW 9.94A.030, to accurately cross-reference those
provisions. The Castillo and Albright courts treated the new definition as an oversight
and interpreted the statute as preserving its original meaning. Castillo, 144 Wash. App. at
591; Albright, 144 Wash. App. at 571.
No. 69924-5-1/6
We find that the trial court did not exercise discretion when it amended Durrett's
judgment and sentence on remand. Therefore, Durrett's right to be present and right to
counsel did not apply.
II. Statements of Additional Grounds
Durrett also raises multiple statements of additional grounds (SAGs). He alleges
that the court's failure to hold a hearing violated his right to a report of proceedings under
RAP 9.1. That rule pertains to the composition of the record on appellate review. It sets
forth procedural requirements that parties must meet. It does not provide rights to parties
or mandate oral proceedings at the trial court level. We find no merit in Durrett's
argument.
Durrett further asserts that the court and the prosecutor committed fraudulent
misrepresentation. First, Durrett maintains that his judgment and sentence fraudulently
implies that he was present for all stages of sentencing. The parties do not dispute that
neither Durrett nor his attorney was present for entry of the order amending his judgment
and sentence. And, while Durrett's judgment and sentence on first remand correctly
states that he and his attorney were present, the order entered on second remand makes
no such representation.
Durrett also argues that the prosecutor committed fraudulent misrepresentation
and misconduct by stating that the court was performing a ministerial task and presenting
the order amending his judgment and sentence. As discussed above in section I, the
court's actions on remand were proper. The prosecutor's actions were thereby proper as
well. Moreover, Durrett references documents that are attached to his SAG but not
No. 69924-5-1/7
designated in the record. We cannot consider matters outside the record on a direct
appeal. State v. McFarland. 127 Wash. 2d 322, 335, 899 P.2d 1251 (1995) ("If a defendant
wishes to raise issues on appeal that require evidence or facts not in the existing trial
record, the appropriate means of doing so is through a personal restraint petition.")
We affirm.
WE CONCUR:
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