State v. Petterson

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IN CLERKS OFFICE
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SUSAN L: CARLSON
SUPREME COURT CLERK
IN THE SUPREME COURT OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
Respondent, No. 94439-3
ERIK GRANT PETTERSON,
Filed 1 iMm
Petitioner.
OWENS,J. — Erik Petterson has been serving a term of community custody
under a special sex offender sentencing alternative(SSOSA)for over 15 years. ROW
9.94A.670. After Petterson successfully completed treatment, the court removed most
of his community custody conditions. The Washington State Department of
Corrections(Department)now seeks to ensure that while Petterson is on community
custody, he is required to comply with department-imposed conditions. At issue here
is whether courts must require this condition and whether courts have authority to
modify community custody conditions after terminating treatment.
State V. Patterson
No. 94439-3
FACTS AND PROCEDURAL HISTORY
Petterson received a sentencing alternative under the SSOSA statute when he
pleaded guilty to child molestation in the first degree in 2002. Clerks Papers(CP)at
6-12. The superior court ordered 68 months of confinement with 62 months
suspended for the maximum term of life. Id. In accordance with the SSOSA statute,
the suspended sentence was conditioned on community custody for the length ofthe
maximum term. Id. For Petterson, this meant a lifetime of community custody. Id.
One ofthe conditions required Petterson to comply with any conditions imposed by
the Department(department-eompliance condition). Id.
The department-compliance condition was suspended after a series of
proceedings from 2005 to 2008. In October 2005,Petterson appeared for his
treatment termination hearing, which is mandated by the SSOSA statute as a time to
review community custody conditions and treatment. RCW 9.94A.670.^ The court
found that Petterson had successfully completed treatment and, upon a joint request,
terminated his treatment. CP at 14-16. The court mistakenly also terminated his
eommunity eustody as a result of a scrivener's error. Id. The mistake was
subsequently discovered, and the State filed a motion to amend the order in Deeember
'Since Patterson's sentencing in 2001, the SSOSA statute has been reorganized and renumbered.
There have been no major substantive changes. The one notable change is the addition of a
mandatory annual treatment review hearing. Laws OF 2004, eh. 176, § 4(4)(d). The court will
thus refer to the eurrent statutory provisions throughout this opinion.
State V. Patterson
No. 94439-3
2006. CP at 17. The court granted the amendment in March 2007, and the Court of
Appeals affirmed. CP at 22-24, 35-39.
The superior court held a hearing in April 2008 to determine next steps in light
ofthe Court of Appeals' decision. Verbatim Report ofProceedings(VRP)(Apr. 18,
2008) at 4-10. At this hearing, Petterson moved to modify his community custody.
Id. The court deferred a final decision until Community Corrections Officer(CCD)
David Payne could be present. Id. at 11-12. The court held the next hearing on
May 5, 2008, with CCO Payne but ultimately decided to further delay the decision to
allow the Attorney General's Office to be present. VRP(May 5, 2008) at 11-12. The
court reconvened on May 30, 2008, but no one from the Attorney General's Office
appeared. VRP(May 30,2008) at 1. The State told the court that the prosecutor's
office had communicated with the Department and the Indeterminate Sentence
Review Board and neither body was taking a position. Id. at 4. The court ruled that it
had the authority to modify community custody conditions and signed an order
suspending all of Petterson's conditions except for two:(1)obey all laws, and
(2) update the Department of any change in address or phone number. CP at 40.
Since that series of proceedings, Petterson has maintained strict compliance
with his remaining conditions. CP at 105-18. He also reported to his CCO 13 times
between 2009 and 2015 even though he was not required to do so. Id. The court
ordered that he be removed from the sex offender registry in 2013 after the
State V. Patterson
No. 94439-3
Department filed a report detailing Petterson's compliance. CP at 43. Despite his
record of complete compliance and successfully completing treatment, the
Department's position on Petterson's conditions drastically changed when he moved
to King County and his case was transferred to a new CCO.
Petterson moved to King County in 2014, and his new CCO proposed
reinstating a slew of community custody conditions, including going back to treatment
despite his graduation from treatment nearly nine years earlier. CP at 105, 121-36.
Petterson declined to sign the new conditions, citing the 2008 order suspending most
conditions. CP at 136. The Department then filed an amicus motion to reinstate the
department-compliance condition, arguing the court did not have the authority to
remove it in 2008. CP at 54-64. The court granted the motion, and the Court of
Appeals affirmed. CP at 142-46; State v. Petterson, 198 Wn. App.673, 394 P.3d 385(2017). The Court of Appeals held that the court did not have authority to modify any
community custody conditions in 2008 because the treatment termination hearing
occurred in 2005, and that regardless ofthe timing, the department-compliance
condition was mandatory and could never be suspended. Petterson, 198 Wn. App. at
682-84. The Court of Appeals went even further and held that after final judgment
and sentencing, the court loses jurisdiction to the Department. Id. at 681-82.
Petterson petitioned for review, which this court granted. State v. Petterson,
189 Wn.2d 1001, 400 P.3d 1257(2017). We hold that while the department-
State V. Petterson
No. 94439-3
compliance condition is statutorily mandatory,the court retains jurisdiction during the
life of a SSOSA and has authority to modify discretionary conditions.
ISSUES
1. Did the court have authority to modify community custody conditions at the
2008 hearing?
2. Do courts have authority to remove the department-compliance condition?
3. Do courts lose jurisdiction to the Department after unposing a SSOSA and lack
authority to modify conditions after the treatment termination hearing?
ANALYSIS
We must interpret the SSOSA statute to determine when the superior court has
authority to modify community custody conditions and whether the specific
department-compliance condition can ever be removed.
"Statutory interpretation is a question of law, subject to de novo review." City
ofSpokane v. Spokane County, 158 Wn.2d 661, 672-73, 146 P.3d 893(2006). In
reading the SSOSA statute, this court's duty is to "give effect to the Legislature's
intent." State v. Elgin, 118 Wn.2d 551, 555, 825 P.2d 314(1992). The clearest
indication of legislative intent is the language enacted by the legislature itself. State v.
Ervin, 169 Wn.2d 815, 820, 239 P.3d 354(2010). Therefore,"if the meaning of a
statute is plain on its face, we 'give effect to that plain meaning.'" Id. (internal
quotation marks omitted)(quoting State v. Jacobs, 154 Wn.2d 596, 600, 115 P.3d 281State V. Petterson
No. 94439-3
(2005)). However, we will not read a statute in isolation; we determine its plain
meaning by taking into account "the context ofthe entire act," as well as other related
statutes. Jametsky V. Olsen, 179 Wn.2d 756, Kil, 317 P.3d 1003(2014).
1. The Superior Court Had the Authority To Modify Community Custody
Conditions at the 2008 Hearing
As both parties agree, the statute explicitly grants courts authority to modify
conditions of community custody at the treatment termination hearing. The statute
provides that "[a]t the treatment termination hearing the court may ...[mjodify
conditions of community custody." RCW 9.94A.670(9)(a). However,the parties
disagree about whether the superior court's 2008 order was a part ofthe treatment
termination hearing. While "hearing" indicates a singular proceeding, in this case the
treatment termination hearing was comprised of six proceedings occurring between
October 2005 and May 2008. Pet. for Review at 15.
The three-year span ofthe treatment termination hearing was spurred by the
scrivener's error in the 2005 order. CP at 15. After the court mistakenly terminated
community custody, the order was not corrected and final until the hearing on
May 30, 2008, when the court removed the department-compliance condition. CP at
40. The Department argues that the hearings held from 2006 to 2008 were not a part
of the treatment termination hearing because treatment was never at issue. State's
Answer to Pet. for Review at 8. This is not persuasive. By statute, the treatment
termination hearing addresses two components ofthe SSOSA:treatment and
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State V. Petterson
No. 94439-3
community custody. RCW 9.94A.670(9). When one issue in a case is decided but the
court continues to grapple with the other, the case is not yet final. See State v. Siglea,
196 Wash. 283, 285-86, 82 P.2d 583 (1938). Similarly, while the court resolved the
treatment issue in 2005 by terminating treatment, the community custody issue was
not resolved until May 2008. Thus, the course of proceedings from 2005 to 2008
were all a part ofthe treatment termination hearing.
Because the May 2008 proceeding was a part ofthe treatment termination
hearing, the court had explicit statutory authority to modify conditions of community
custody at that time.
2. The Superior Court Did Not Have Authority To Remove the Department-
Compliance Condition Because It Is Mandatory
After finding that the court had authority to modify conditions in the 2008
order, we must then determine if the court could remove the department-compliance
condition. The Department argues that the court did not have authority to do so
because it is statutorily mandatory. Suppl. Br. of Department at 11-13.
The statutory provision that gives courts the power to modify community
custody conditions does not specify which conditions can be removed. However,
there are two places in the SSOSA statute indicating that the department-compliance
condition must be imposed along with any term of community custody. First, in
describing the elements of a SSOSA,it states,"[A]s conditions ofthe suspended
sentence, the court must impose thefollowing'. ...[a] term of community
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State V. Petterson
No. 94439-3
custody ... and require the offender to comply with any conditions imposed by the
department under RCW 9.94A.703." RCW 9.94A.670(5)(b)(emphasis added).
Under the plain meaning ofthis section,"must," a synonym of"shall," operates to
create a duty rather than conferring jurisdiction. See State v. Bartholomew, 104
Wn.2d 844, 848, 710 P.2d 196 (1985).
In a neighboring section, the statute lists conditions the court may impose and
labels the department-compliance condition as a "[mjandatory" condition.
RCW 9.94A.703(1)(boldface omitted). It provides that "[wjhen a court sentences a
person to a term of community custody, the court shall impose conditions of
community custody as provided in this section." RCW 9.94A.703. It goes on to list
conditions that are "[mjandatory,"[wjaivable," "[djiscretionary," and "[sjpecial."
Id. (boldface omitted). Under "[mjandatory conditions," it states that "[ajs part of any
term ofcommunity custody, the court shall....[rjequire the offender to comply with
any conditions imposed by the department under RCW 9.94A.704."
RCW 9.94A.703(l)(b)(emphasis added). The directive "shall" is treated as
presumptively imperative. State v. Blazina, 182 Wn.2d 827, 838, 344 P.3d 680(2015).
Though the statute does not provide a timeline for these mandatory conditions,
the plain meaning ofthe statute indicates they must be imposed so long as the
offender is under community custody. The introductory language ofthe subsection,
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State V. Petterson
No. 94439-3
"[w]hen a court sentences a person to a term ofcommunity custody," indicates that
they are mandatory at the outset of a SSOSA. RCW 9.94A.703. Then,the phrase
"any term of community custody" denotes that these conditions must accompany
community custody. RCW 9.94A,703(1). There is no text that points to a time when
these conditions become optional. Thus, under the plain language ofthe SSOSA
statute, the department-compliance condition is mandatory.
Petterson puts forth a policy argument that, while compelling, does not
overcome the plain meaning ofthe SSOSA statute. Petterson argues that the courts,
rather than the Department, are best suited to remove or impose conditions in response
to life changes. Petterson argues that community custody modification should be
made "by judges in an adversarial setting with input from all concerned parties" rather
than by a community corrections officer, a "quasi-judicial officer." SuppL Br. of
Appellant at 1. Petterson's argument is particularly persuasive in light of his
experience with the Department. After years of complete compliance, successfully
completing treatment, and even being taken off the sex offender registry, his new
CCO in King County had the authority to impose conditions that essentially take him
back to square one. This scenario seems antithetical to the purpose of SSOSA to
rehabilitate offenders. However, his new CCD's authority is not unfettered. As we
explain below, the statute imbeds court oversight by giving courts authority to modify
discretionary conditions.
State V. Petterson
No. 94439-3
3. The Superior Court Retains Jurisdiction To Modify Community Custody
Conditions after Imposing a SSOSA
The statutory scheme mandates court supervision during the life of a SSOSA.
See State v. Bigsby, 189 Wn.2d 210, 214, 399 P.3d 540(2017)("the court has
concurrent supervisory authority with the Department over these offenders"). The
SSOSA statute gives courts explicit authority to modify discretionary conditions
during annual treatment review hearings and at the treatment termination hearing.
ROW 9.94A.670(7)-(9). If the court and the Department disagree on a particular
condition, the statute gives greater authority to the court: "[T]he department may not
impose conditions that are contrary to those ordered by the court and may not
contravene or decrease court-imposed conditions." RCW 9.94A.704(6). The court
also has explicit authority to "revoke the suspended sentence at any time during the
period of community custody." RCW 9.94A.670(11). These provisions indicate that
the statute's intent is for courts to impose and modify conditions and have the power
to trump the Department if there is disagreement on a discretionary condition.
The Department argues that beyond those explicit grants of authority, courts do
not have jurisdiction to modify community custody conditions. Suppl. Br. of
Department at.13-16. The Department argues that the court cannot modify conditions
after the treatment termination hearing because the statute does not give explicit
authority to modify conditions beyond that event. Id. The Court of Appeals agreed
with the Department and further held that courts lose jurisdiction to the Department
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State V. Petterson
No. 94439-3
after final judgment and sentencing. Petterson, 198 Wn. App. at 681-82. The
Department and the Court of Appeals rely on Shove and Harkness, which hold that
"SRA sentences may be modified only ifthey meet the statutory requirements relating
directly to the modification of sentences." State v. Harkness, 145 Wn. App. 678,685,
186 P.3d 1182(2008)(citing State v. Shove, 113 Wn.2d 83, 89, 776 P.2d 132(1989)).
However,these cases are distinguishable because both decisions deal with the
finality of non-SSOSA sentences. Id. at 684-86(holding that the court lacked
authority to convert a standard 90-month sentence to a drug offender sentencing
alternative); Shove, 113 Wn.2d at 85-89(holding that the court lacked authority to
modify a work release sentence to a suspended sentence with probation). Shove and
Harkness speak to court authority only over standard final sentences, not the court's
authority to modify community custody conditions under a SSOSA. Id. The
authority the SRA gives to courts under the SSOSA scheme is unique. Unlike a
standard final sentence in the SRA,the conditions are designed to change during a
SSOSA as the person rehabilitates. See ROW 9.94A.670;.703. Because the
conditions under a SSOSA are intended to be modified by the court. Shove and
Harkness do not apply here.
Without case law to point to, we look to the SSOSA scheme to interpret the
court's authority. The SSOSA statutory scheme indicates that courts maintain
jurisdiction and have the authority to modify conditions throughout the life ofthe
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State V. Patterson
No. 94439-3
SSOSA. We hold that unless the SSOSA is revoked, courts have authority to modify
discretionary community custody conditions. While the annual review hearings and
treatment termination hearing are set out in the statute as times the court may modify
conditions, the court also has authority to modify conditions upon a motion by the
offender, the State, or the Department.
CONCLUSION
We affirm the Court of Appeals' ultimate holding that the superior court did
not have the authority to remove the department-compliance condition. However, our
holding departs from the Court of Appeals' decision in two important ways. First, we
find that the hearing in 2008 was an extended part ofthe treatment termination
hearing that began in 2005. Second, we hold that after imposing a SSOSA, courts
retain jurisdiction and may modify discretionary community custody conditions even
after treatment is terminated.
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State V. Petterson
No. 94439-3
WE CONCUR:
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