State of Washington v. Charlotte D. Bergen

FILED
FEBRUARY 19,2015
In the Office of the Clerk of Court
W A State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, ) No. 31648-3-111
)
Respondent, )
)
v. ) PUBLISHED OPINION
)
CHARLOTTE DELENE BERGEN, )
)
Appellant. )
LAWRENCE-BERREY, J. Charlotte Delene Bergen pleaded guilty to possession of
controlled substance, methamphetamine, in exchange for receiving a reduced sentence
under DOSA, the drug offender sentencing alternative, RCW 9.94A.660. She appeals her
sentence, and contends that the sentencing court exceeded its authority when it ordered
her to remain incarcerated until a space opened in a residential treatment facility. Ms.
Bergen also appeals the sentencing court's imposition oflegal financial obligations
(LFOs), contending it failed to first find she had the present or future ability to pay. We
conclude the trial court erred by incarcerating Ms. Bergen pending placement in a
treatment facility. We affirm the imposition ofLFOs.
No. 3 1648·3·III
State v. Bergen
FACTS
On December 3,2012, the State charged Ms. Bergen with possession of a
controlled substance, methamphetamine. The next month, the court issued a bench
warrant when Ms. Bergen failed to maintain contact with her attorney. In March 2013,
Ms. Bergen pleaded guilty to the charge. Her criminal history included seven prior drug
convictions. The State agreed to recommend a residential DOSA sentence if Ms. Bergen
qualified. The Department of Corrections (DOC) conducted a chemical dependency
evaluation, which indicated that Ms. Bergen was drug dependent and predicted that she
would "continue to engage in criminal behaviors to support addiction." Clerk's Papers
(CP) at 21. The evaluation also noted that Ms. Bergen had been diagnosed with post-
traumatic stress disorder and mUltiple personality disorder.
At sentencing, Ms. Bergen had been in jail 59 days. She requested a residential
DOSA, acknowledging daily use of heroin and methamphetamine. She also
acknowledged that her drug abuse caused social, emotional, and physical problems, and
negatively affected work, school, and social activities. Based on Ms. Bergen's need for
treatment, the trial court judge waived the standard range sentence of 12+ to 24 months of
confinement and imposed 24 months of community custody on the condition that Ms.
Bergen enter and remain in residential treatment for six months.
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The court also imposed LFOs in the amount of$3,362.30 to be paid at $100 per
month following treatment. However, it reduced the payment to $50 per month at Ms.
Bergen's request when she said she was on a limited Social Security income.
Defense counsel then mentioned that there was no available space at the inpatient
drug treatment facility and asked that Ms. Bergen be released pending a bed date.
Defense counsel stated, "If we let [Ms. Bergen] go free she could go back to the drugs.
On the other hand, the liberty interest is you just can't say well, if I was to let you free you
would use drugs so you need to be incarcerated." Report of Proceedings (RP) (Apr. 18,
2013) at 116. The court asked the parties to check with DOC on the availability of a bed
date. In the meantime, the court ordered Ms. Bergen to remain in jail.
Four days later, defense counsel moved for Ms. Bergen's immediate release,
arguing there was no authority for holding her in jail pending admission into a treatment
program. Defense counsel asserted that under DOSA, the sentence must be two years of
community custody conditioned upon entering and remaining in treatment and that, by
definition, community custody does not include incarceration. The prosecutor disagreed,
contending the DOSA statute gives courts significant discretionary authority in fashioning
a sentence. The prosecutor explained that the treatment facility would require a patient to
be "clean" before entering treatment and that releasing Ms. Bergen untreated could
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No. 31648-3-III
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undennine the DOSA if she began using illegal substances while released. RP (Apr. 22,
2013) at 3. A DOC representative advised the court that there was a possible bed date of
June 13, Gust under two months), but added, "I'm very confident we'll be able to get her
in sooner than that." RP (Apr. 22, 2013) at 4.
The court detennined it had the discretion to detain Ms. Bergen pending entry into
a treatment facility. In its oral ruling, it stated, "I think because [the DOSA statute] is
really silent, the Court has discretion." RP (Apr. 22, 2013) at 5. In its written findings,
the court emphasized: (1) Ms. Bergen had been incarcerated for almost two months
pending sentencing for failure to maintain contact with her attorney; (2) Ms. Bergen's 15­
year history of illegal substance abuse, which included seven prior felony convictions for
drug-related crimes; and (3) the strong likelihood that a bed would be available in two
months or sooner. The court then concluded it had "inherent authority to detain the
Defendant from April 18, 2013, until such time as she enters a residential treatment
facility." CP at 57.
Ms. Bergen appeals the detention order and the imposition of LFOs. Prior to this
decision, counsel advised us that Ms. Bergen no longer was in custody, and she had
completed her program.
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ANALYSIS
A. Whether this court should resolve the moot issue presented
Ms. Bergen asserts the sentencing court exceeded its statutory authority under the
DOSA statute when it ordered her to remain in jail pending a bed date in a treatment
facility. The State contends the issue is moot because Ms. Bergen was released and has
completed treatment.
A case is moot "when it involves only abstract propositions or questions, the
substantial questions in the trial court no longer exist, or a court can no longer provide
effective relief." Spokane Research & De! Fund v. City ofSpokane, 155 Wash. 2d 89, 99,
117 P.3d 1117 (2005). However, "[a court] may decide a moot issue if it involves matters
of continuing and substantial public interest. To determine whether a case involves the
requisite public interest, we consider (1) the public or private nature of the question
presented, (2) the desirability of an authoritative determination to provide future guidance
to public officers, and (3) the likelihood that the question will recur." Thomas v. Lehman,
138 Wash. App. 618, 622,158 P.3d 86 (2007) (citation omitted).
Because Ms. Bergen has been released from jail and completed treatment, this
court cannot provide effective relief. Thus, the case is moot. However, at the release
hearing, defense counsel noted "[t]his [issue] has come up before," and the trial court
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indicated it needed guidance, given the DOSA statute's silence on the issue. RP (Apr. 22,
2013) at 2. In view of the need for an authoritative determination to provide future
guidance and the certitude that this question will recur, we choose to answer the issue
presented.
B. Whether, after imposition ofa residential DOSA sentence, a trial court has
authority to incarcerate an offender pending admission to a treatment facility
Ms. Bergen argues that the fixing of punishments for a criminal offense is a
legislative function and that a court's role is limited to imposing the sentence provided by
law for that offense. Because the DOSA statute does not contain a provision for
indeterminate incarceration pending a bed date, Ms. Bergen maintains that the trial court
exceeded its authority in detaining her until space became available in a treatment facility.
The State disagrees. It argues that the statute gives the sentencing judge broad
discretion to fashion the details of a DOSA to best effectuate legislative intent. Noting
that the purpose of a DOSA is to treat offenders who abuse substances so as to reduce
recidivism, the State contends that "the court's action did not usurp the legislative power,
but effectuated the legislative intent through proper exercise of the court's power and
discretion." Resp't's Br. at 11.
A sentencing court's authority under the Sentencing Reform Act of 1981, chapter
9.94A RCW, is a question of law, reviewed de novo. State v. Parmelee, 172 Wash. App.
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899, 909, 292 P.3d 799, review denied, 177 Wash. 2d 1027 (2013). Statutory interpretation
is also a legal issue we examine de novo. Multicare Med. Ctr. v. Dep't ofSoc. & Health
Servs., 114 Wn.2d 572,582 n.15, 790 P.2d 124 (1990). When interpreting a statute, we
must discern and implement our legislature's intent. State v. J.P., 149 Wash. 2d 444, 450,
69 P.3d 318 (2003). If the statute's meaning is plain, we must effectuate it as an
expression of our legislature's intent. Dep't ofEcology v. Campbell & Gwinn, LLC, 146
Wn.2d 1,9-10,43 P.3d 4 (2002).
Before we tum to the DOSA statute, we note that detention is a judicial power.
erR 3.2. Before a finding of guilt, a court may impose conditions of release upon an
accused if the court finds that the accused is not likely to appear if released on personal
recognizance. erR 3.2(b). Traditionally, a bail bond in an appropriate amount will be set
by a court. See erR 3.2(b)(5).
Sentencing, however, is a legislative power. State v. Bryan, 93 Wash. 2d 177, 181,
606 P.2d 1228 (1980). The legislature has the power to fix punishment for crimes subject
only to the constitutional limitations against excessive fines and cruel punishment. State
v. Mulcare, 189 Wash. 625, 628, 66 P.2d 360 (1937). It is the function of the legislature,
not the judiciary, to alter the sentencing process. State v. Monday, 85 Wash. 2d 906, 909-10,
540 P.2d 416 (1975). A trial court's discretion to impose a sentence is limited to what is
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granted by the legislature, and the court has no inherent power to develop a procedure for
imposing a sentence unauthorized by the legislature. State v. Ammons, 105 Wash. 2d 175,
180, 713 P.2d 719, 718 P.2d 796 (1986).
The general statute that authorizes the imposition of a DOSA sentence is
RCW 9.94A.660. RCW 9.94A.660(3) provides in relevant part:
If the sentencing court determines that the offender is eligible for an
alternative sentence under this section and that the alternative sentence is
appropriate, the court shall waive imposition of a sentence within the
standard sentence range and impose a sentence consisting of either a prison­
based alternative ... or a residential chemical dependency treatment-based
alternative.
RCW 9.94A.664 governs a residential DOSA sentence. RCW 9.94A.664(1)
provides in relevant part:
A sentence for a residential chemical dependency treatment-based alternative shall
include a term of community custody equal to one-half the midpoint of the
standard sentence range or two years, whichever is greater, conditioned on the
offender entering and remaining in residential chemical dependency treatment
certified under chapter 70.96A RCW for a period set by the court between three
and six months.
The remainder ofRCW 9.94A.664 directs the court to impose those community
custody conditions as directed by the DOC's examination report, directs the department to
make chemical dependency assessment and treatment services available to the offender,
requires the treatment provider to send the treatment plan to the court, requires the court
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to schedule a progress hearing during the period of treatment and a termination hearing
three months after treatment, requires the treatment provider and the department to submit
timely reports to the court and parties, and grants the court authority to enter certain
orders during the review or termination hearings. As observed by the trial court here,
nothing in the residential DOSA statute authorizes a court to incarcerate an offender
pending a bed date.
"After final judgment and sentencing, the court loses jurisdiction to the DOC."
State v. Harkness, 145 Wash. App. 678, 685, 186 P.3d 1182 (2008). This leaves no room
for inherent authority to be exercised by the sentencing court. State v. Murray, 118 Wn.
App. 518, 524, 77 P.3d 1188 (2003). We hold that the trial court lacked authority to
incarcerate Ms. Bergen as a condition of her residential DOSA sentence or under its
inherent authority.
Nevertheless, there is a practical solution to this problem. The trial court may take
a plea and delay sentencing until a bed date is available. As noted above, prior to
sentencing, courts have authority to impose conditions of release and in the situation
where an offender already has pleaded guilty and has admitted to being chemically
dependent, the trial court is well within its authority to set or increase the bond amount to
assure that the offender will appear at sentencing.
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C. Whether the trial court erred in imposing LFOs
Ms. Bergen assigns error to the imposition of LFOs without the trial court
considering her present or future ability to pay. The State contends she did not preserve
the issue because she did not object at the sentencing hearing. The State is correct.
Until our Supreme Court decides otherwise, the rule established by each division
of this court is that a defendant may not challenge a determination regarding his or her
ability to pay LFOs for the first time on appeal. State v. Duncan, 180 Wash. App. 245, 252­
53,327 P.3d 699 (2014); State v. Calvin, _ Wn. App. _,316 P.3d 496, 507-08,
petition/or review filed, No. 89518-0 (Wash. Nov. 12,2013); State v. Blazina, 174 Wn.
App. 906, 911, 301 P.3d 492, review granted, 178 Wash. 2d 1010 (2013). Thus, we decline
to address this assignment of error.
Even if we were to reach this assignment of error, there is no error. The $500
victim assessment, $100 DNA (deoxyribonucleic acid) collection fee, and $200 criminal
filing fee are each required irrespective of the defendant's ability to pay. State v. Lundy,
176 Wash. App. 96, 102,308 P.3d 755 (2013).
As to the discretionary LFOs, RCW 10.01.160(3) requires that the court "take
account of the financial resources of the defendant and the nature of the burden that
payment of costs will impose." In State v. Baldwin, this court affirmed a trial court's
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finding that an offender had the present or likely future ability to pay LFOs where the
only evidence to support it was a statement in the presentence report that the offender
described himself as employable. State v. Baldwin, 63 Wash. App. 303, 311, 818 P.2d
1116, 837 P.2d 646 (1991). Here, the sentencing court granted Ms. Bergen's request to
reduce her monthly payment from $100 per month to $50 per month based on her limited
Social Security income. Ms. Bergen's indication that she could pay $50 per month
satisfied the State's burden. "The State's burden for establishing whether a defendant has
the present or likely future ability to pay ... is a low one." Lundy, 176 Wash. App. at 106.
In conclusion, we hold that the trial court erred when it incarcerated Ms. Bergen
following imposition of her residential DOSA sentence. We affirm the imposition of
LFOs.
Lawrence-Berrey, 1.
WE CONCUR:
Brown, A.C.J.
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