State Of Washington, Appellant/cross-respondent V. Tylor Sean Donnelly, Respondent/cross-appellant

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
DIVISION ONE
Appellant/Cross-Respondent,
No. 81680-2-I (consol. with
v. No. 81532-6-I)
TYLOR SEAN DONNELLY, UNPUBLISHED OPINION
Respondent/Cross-Appellant.
DWYER, J. — The State appeals from the superior court’s order granting
Tylor Donnelly’s motion to amend the warrant of commitment to award him credit
for time served at liberty. Because Donnelly is not entitled to this form of
equitable relief from the sentence, we reverse the superior court’s order
amending the warrant of commitment.
Additionally, Donnelly cross appeals from the superior court’s order
denying his petition for a writ of mandamus. This petition sought a writ requiring
the San Juan County sheriff to apply for a second parole permit so that Donnelly
could reenter the United States to serve the remainder of the sentence imposed
upon him. Because Donnelly fails to demonstrate that the sheriff had a clear
duty to apply for the parole permit, we affirm the superior court’s order denying
the petition.
No. 81680-2-I/2
I
Most of the facts underlying this appeal are set for forth in our first opinion
in this matter, State v. Donnelly, No. 77816-1-I, slip op. at 1-6 (Wash. Ct. App.
May 6, 2019) (unpublished), https://www.courts.wa.gov/opinions/pdf/778161.pdf.
In his prior appeal, Donnelly asserted that the superior court erred by denying his
motion to amend the warrant of commitment to award him credit for days during
which he was unable to report for work crew. Donnelly, No. 77816-1-I, slip op.
at 1. We rejected Donnelly’s argument and affirmed the superior court’s order.
Donnelly, No. 77816-1-I, slip op. at 1. In so doing, we reasoned that Donnelly
failed to meet the requirements to be granted credit for time served at liberty.
Donnelly, No. 77816-1-I, slip op. at 11.
On December 5, 2017, Donnelly, for whom the sheriff had arranged the
issuance of a permit issued by the United States Department of Homeland
Security allowing entry into the United States, filed a motion in the superior court
to stay the sentence pending his first appeal.1 The State opposed this motion.
On December 12, the superior court entered an order granting Donnelly’s motion
to stay, but only with regard to the term of work crew service that was authorized
1 Under federal immigration law, Donnelly’s felony conviction renders him unable to enter
the United States, absent special authority from the Secretary of the Department of Homeland
Security. U.S. DEP’T OF HOMELAND SEC’Y, PRIVACY IMPACT ASSESSMENT FOR THE ICE PAROLE AND
LAW ENFORCEMENT PROGRAMS UNIT CASE MANAGEMENT SYSTEMS, at 1 (Dec. 3, 2018),
https://www.dhs.gov/sites/default/files/publications/privacy-pia-ice-plepucms-
december2018.pdf#:~:text=The%20Parole%20and%20Law%20Enforcement%20Programs%20U
nit%20%28Parole,in%20the%20ICE%20Parole%20Unit%20Case%20Management%20Systems[
https://perma.cc/T47M-4AXP].
2
No. 81680-2-I/3
under the sentence. Sometime thereafter, Donnelly departed the United States
and returned to Canada.2
On October 24, 2019, following our decision in the first appeal, the State
filed a motion in the superior court wherein it sought an order requiring Donnelly
to appear and complete the remainder of the sentence. In response, Donnelly
filed a memorandum in which he made the following two requests:
1. That his commit date be set in the second week in January at
the earliest; and
2. That an appropriate order be entered requiring the Sherriff’s
Office to monitor Mr. Donnelly for an additional month so that he
can complete the community service portion of his sentence in
compliance with federal regulations.
On November 12, 2019, the superior court heard the State’s motion.
Donnelly did not appear at the hearing, but his attorney was present. During the
hearing, the State requested that the superior court issue a bench warrant for
Donnelly’s arrest. Additionally, the State opposed both of the requests made in
Donnelly’s memorandum. The superior court declined to issue a bench warrant
for Donnelly’s arrest and suggested that Donnelly file a written motion clarifying
his requests.
On November 18, 2019, Donnelly filed a petition for a writ of mandamus to
require the San Juan County sheriff to apply for a second parole permit from the
Department of Homeland Security so that Donnelly could reenter the United
States to serve the remainder of his sentence. That same day, Donnelly also
filed a motion to modify the sentence pursuant to CrR 7.8(b)(5). In this motion,
2 In his response brief, Donnelly states: “Having entered the United States a few days
prior to the stay on the parole permit that the Sheriff had obtained, Mr. Donnelly returned to
Canada.” Br. of Resp’t at 6.
3
No. 81680-2-I/4
Donnelly sought an order requiring the sheriff to electronically monitor him “up to
one month following completion of his work crew sentence so that he can
complete his community service in the United States.” Alternatively, Donnelly
requested “that he be allowed to complete his community service in Canada.”
On November 25, 2019, the State filed a memorandum opposing
Donnelly’s motion to modify the sentence. On November 26, the sheriff filed an
answer to Donnelly’s petition for a writ of mandamus in which the sheriff
requested that the superior court dismiss the petition.
On December 10, 2019, the superior court heard both Donnelly’s motion
to modify the sentence and his petition for a writ of mandamus. During the
hearing, the superior court denied Donnelly’s petition for a writ of mandamus.3
Also during the hearing, Donnelly’s counsel withdrew his motion to modify the
sentence and indicated that he would file a different motion following the hearing.
Accordingly, the superior court did not rule on the motion to modify the sentence.
On January 6, 2020, Donnelly filed a motion to amend the warrant of
commitment pursuant to CrR 7.8(b)(5). In this motion, Donnelly asserted that he
was entitled to credit for time served at liberty with regard to the remainder of the
sentence. Donnelly claimed that he was entitled to this form of equitable relief
because the sheriff declined to apply for a second parole permit after Donnelly
decided to depart the United States following the institution of his appeal in
Donnelly, No. 77816-1-I.
3On May 11, 2020, the superior court entered a written order denying with prejudice
Donnelly’s petition for a writ of mandamus.
4
No. 81680-2-I/5
On February 5, 2020, the State filed a motion for a bench warrant. That
same day, the State also filed a memorandum opposing Donnelly’s motion to
amend the warrant of commitment. In its memorandum, the State asserted that
no new circumstances had arisen, since Donnelly filed his notice of appeal in
Donnelly, No. 77816-1-I, that entitled him to credit for time served at liberty. The
State also contended that the superior court lacked authority to modify Donnelly’s
sentence pursuant to CrR 7.8.
On February 28, 2020, the superior court heard both the State’s motion for
a bench warrant and Donnelly’s motion to amend the warrant of commitment.
On April 20, the superior court issued a letter decision on both of these motions.
In this letter decision, the superior court concluded that it could review Donnelly’s
motion to amend the warrant of commitment pursuant to CrR 7.8(b)(5). The
superior court also explained that Donnelly was entitled to credit for time served
at liberty with regard to the remainder of the sentence. In so doing, the superior
court reasoned as follows:
I conclude that the equitable doctrine should be applied here and
that Mr. Donnelly is entitled to credit, in equity, for time spent at
liberty against the 44 days remaining on his sentence (30 of which
were converted to 240 hours of community service). Where the
Sheriff controls the ability for Mr. Donnelly to enter the country with
a parole permit to serve the remainder of his sentence and chooses
not to obtain the permit, it is inequitable to allow Mr. Donnelly to
remain in limbo, with a sentence tolled that he cannot fulfill,
perhaps indefinitely.
The Court acknowledges that Mr. Donnelly made the choice to
return to Canada, including after the hearing on December 12,
2017. However, given the specific facts here, the Court concludes
that those choices do not qualify as his fault or contribution to the
problem in the way that was foreseen and intended by the Court in
5
No. 81680-2-I/6
Roach.[4] The initial choice to return home was with the permission
of the Sheriff’s Office and after Mr. Donnelly had done some due
diligence with regards to his ability to re-enter the United States
following conviction. The second choice to return home was
related to his choice to pursue his legal right of appeal. It would not
be appropriate for the Court to “punish” Mr. Donnelly for appealing
or to conclude that his choice to appeal is equivalent to contributing
to the problem at issue. Further, the choice to return home and
appeal was made with the expectation that the Sheriff would again
seek a parole permit to allow him to serve his sentence, if
necessary.
Also in this letter decision, the superior court denied the State’s motion for
a bench warrant.
On May 8, 2020, the State filed a motion to revise the letter decision. In
this motion, the State provided more complete information regarding the sheriff’s
willingness to apply for a second parole permit:
The Sheriff is willing to apply for a second Substantial Public
Benefit Parole if the tracking requirements of the Homeland
Security can be satisfied in a responsible and safe manner. This
will require that the sentence of the defendant be converted to all
jail, as authorized by RCW 9.94A.731. The Sheriff Deputy will meet
the defendant at the border and take him to jail and return him to
the border. No additional penalties are proposed. The duration of
the original sentence remains unchanged. A total of 44 days in
county jail would be served. Before being released to return to
Canada the defendant will be given an opportunity to meet with an
official with the Department of Corrections to arrange for their
continued supervision.
Attached to the State’s motion was a declaration of the sheriff, which
provided support for the statement quoted above. Also in this declaration, the
sheriff provided numerous reasons why he was unwilling to apply for a second
parole permit unless Donnelly was subject to total confinement.
4 In re Pers. Restraint of Roach, 150 Wn.2d 29, 74 P.3d 134 (2003).
6
No. 81680-2-I/7
On May 11, 2020, the superior court held a presentation hearing. At the
hearing, the superior court declined to revise its letter decision and stated that it
would, after entering a final order, consider the State’s motion as a motion for
reconsideration. That same day, the superior court entered an order granting
Donnelly’s motion to amend the warrant of commitment. In this order, the
superior court explained that it declined to consider the State’s motion to revise
the letter decision because “the letter decision did not have errors of fact based
on the record before it when the letter decision was issued.” However, the order
provided that the superior court would “consider it as a motion for
reconsideration, and the court has requested argument on the same.”
On May 15, 2020, the State filed a memorandum in support of
reconsideration. On May 26, the superior court heard the State’s motion for
reconsideration. On June 26, the superior court denied the motion.
The State appeals. Donnelly cross appeals.
II
We begin by clarifying the sentence that was imposed on Donnelly and
the superior court’s authority to enforce that sentence. The parties express the
belief that Donnelly was sentenced to a term of 60 days of work crew and 30
days of community restitution. On remand from our first opinion in this matter,
the superior court articulated a similar belief.5 However, Donnelly was not
sentenced to 60 days of work crew and 30 days of community restitution.
5 For example, in its letter order denying the State’s motion for reconsideration, the
superior court stated that “the State has not established legal authority for the Sheriff or the Court
to convert the 30 days of community service to jail time in order to allow Sheriff Krebs to
supervise the Defendant under a parole permit as proposed.” (Emphasis added.)
7
No. 81680-2-I/8
Rather, Donnelly was sentenced to “[a] term of total confinement in the custody
of the county jail” for “3 months on Count I.” (Emphasis added.) Donnelly was
then authorized to satisfy that sentence of total confinement through a
combination of both work crew service and community restitution.
With regard to work crew, the sentence provided that “[t]he defendant may
serve the sentence, if eligible and approved, in partial confinement in . . . work
crew” pursuant to RCW 9.94A.725. (Emphasis added.) When an offender is
authorized to satisfy his or her sentence through work crew service, the term of
total confinement remains the underlying sentence imposed by the court.
Indeed, “[p]articipation in a work crew is conditioned . . . upon compliance with
the rules of the program.” RCW 9.94A.725 (emphasis added). Furthermore, if
an offender fails to comply with the rules of work crew, the offender may be
required, without further court order, to serve the remainder of his or her term of
work crew in total confinement:
An offender in a county jail ordered to serve all or part of a term of
less than one year in . . . work crew . . . who violates the rules of
. . . work crew . . . may be transferred to the appropriate county
detention facility without further court order.
RCW 9.94A.731(2).
Next, regarding community restitution, the sentence provided that,
pursuant to RCW 9.94A.680,
30 days of total confinement ordered above are hereby converted
to 240 hours of community restitution (service) (8 hours = 1 day,
nonviolent offenders only, 30 days maximum) under the supervision
of the Department of Corrections (DOC) to be completed on a
schedule established by the defendant’s community corrections
officer.
8
No. 81680-2-I/9
Under RCW 9.94A.680, the sentence of total confinement also remains
the underlying sentence imposed by the court. Indeed, this statute provides:
Alternatives to total confinement are available for offenders with
sentences of one year or less. These alternatives include the
following sentence conditions that the court may order as
substitutes for total confinement:
...
(2) In addition, for offenders convicted of nonviolent offenses
only, eight hours of community restitution may be substituted for
one day of total confinement, with a maximum conversion limit of
two hundred forty hours or thirty days. Community restitution hours
must be completed within the period of community supervision or a
time period specified by the court, which shall not exceed twenty-
four months, pursuant to a schedule determined by the department.
RCW 9.94A.680 (emphasis added).
As the statute makes clear, an express condition of community restitution
is that it be completed within a period that “shall not exceed twenty-four months.”
RCW 9.94A.680. When an offender fails to satisfy this condition of community
restitution, two foundational provisions of Title 2 RCW authorize the superior
court to enforce its underlying sentence of total confinement. Indeed, RCW
2.28.010(4) provides that “[e]very court of justice has power . . . [t]o compel
obedience to its judgments, decrees, orders and process, and to the orders of a
judge out of court, in an action, suit or proceeding pending therein.” Likewise,
RCW 2.28.060(2) states that “[e]very judicial officer has power . . . [t]o compel
obedience to his or her lawful orders as provided by law.”
Here, Donnelly failed to satisfy the conditions of both work crew and
community restitution. On November 1, 2017, the sheriff informed Donnelly that
he had been terminated from the work crew program for his failure to report to
work crew. Because Donnelly failed to report to work crew, the sheriff was
9
No. 81680-2-I/10
statutorily authorized to transfer Donnelly “to the appropriate county detention
facility without further court order” so that Donnelly could satisfy the remainder of
his term of work crew in total confinement. RCW 9.94A.731. Furthermore,
Donnelly did not satisfy the additional 30 days remaining on the sentence
through community restitution within 24 months, which was a condition of
community restitution required by statute.6 See RCW 9.94A.680(2). Therefore,
the superior court was authorized to enforce the underlying sentence of total
confinement with regard to these 30 days. See RCW 2.28.010(4); RCW
2.28.060(2).
To be clear, community restitution days were not being “converted” to jail
time, as the superior court judge expressed. Rather, the sentencing condition of
completing community restitution within 24 months was not met. Thus, the
judgment requiring 30 days of incarceration was not satisfied by timely
community restitution performance. Enforcement of the underlying sentence is
allowable.7
6 Donnelly was sentenced on April 28, 2017. On December 12, 2017, the superior court
entered its order staying Donnelly’s sentence pending his appeal in Donnelly, No. 77816-1-I.
This order provided that the “execution of the work crew portion of Mr. Donnelly’s sentence [is]
STAYED pending appeal.” (Emphasis added.) Additionally, the order clarified that “[t]his order
does not stay Defendant’s sentence relating to his community service . . . obligations.”
(Emphasis added.) In other words, Donnelly’s obligations with regard to the portion of his
sentence that was authorized to be satisfied through community restitution was unaffected by this
order. Therefore, more than 24 months elapsed between the sentencing date and October 24,
2019, when the State filed its motion in superior court for an order requiring Donnelly to appear
and complete his sentence (the first action taken by either party after remand).
7 Because community restitution is a condition of the sentence, the defendant must
satisfy the condition to receive its benefit. If, at any point following the imposition of sentence, the
superior court enters an order finding that the condition has not, will not, or cannot be satisfied,
the execution of the underlying term of confinement is warranted.
10
No. 81680-2-I/11
III
We next address whether the superior court erred by declining to consider
the declaration of the sheriff, which contained information regarding the sheriff’s
willingness to apply for a second parole permit. Despite the significance of this
information, the superior court ruled that, pursuant to CrR 7.8, it could not
consider the declaration. However, the superior court’s reasoning fails to
recognize that the nature of the proceeding before it was an action to enforce a
judgment and sentence. Indeed, on October 24, 2019, the State filed a motion
wherein it sought an order requiring Donnelly to appear and complete the
remainder of the sentence. Donnelly’s motion to amend the warrant of
commitment, in which he sought equitable relief from serving the remainder of
the sentence, was filed in response to the State’s motion to enforce the
sentence. As already explained, the superior court was vested with the statutory
authority to enforce its judgment and sentence. The most important information
for the court to acquire was what, exactly, the sheriff was willing to do and what
was the sheriff’s reasoning behind his decision. The superior court abused its
discretion by choosing to ignore this information at a stage of the proceeding at
which it still had time and statutory authority to enforce its judgment and
sentence.
IV
We next discuss the process by which a Homeland Security parole permit
may be issued and whether the sheriff herein lawfully declined to apply for a
11
No. 81680-2-I/12
second parole permit unless Donnelly was required to serve the remaining
portion of his sentence in total confinement.
Federal law provides that the United States Attorney General “may . . . in
his discretion parole into the United States temporarily under such conditions as
he may prescribe only on a case-by-case basis for urgent humanitarian reasons
or significant public benefit any alien applying for admission to the United States.”
8 U.S.C. § 1182(d)(5)(A). This statutory provision has been interpreted to
“provide[] the Secretary of Homeland Security discretion to parole any foreign
national applying for admission into the United States temporarily for urgent
humanitarian reasons or significant public benefit.” PRIVACY IMPACT ASSESSMENT,
supra, at 1.
“Parole is an extraordinary measure, sparingly utilized to permit an
otherwise ineligible noncitizen to enter the United States for a temporary period
due to an urgent humanitarian reason or for significant public benefit.” 9 U.S.
DEP’T OF STATE, FOREIGN AFFAIRS MANUAL § 202.3-2(A)(b). “[Significant public
benefit parole] cases involve an individual whose presence is necessary in
connection with legal cases or investigations, whether at the federal, state, local,
or tribal level of government.” 9 F.A.M. 202.3-3(B)(2)(c) (emphasis added). As
such, “[p]arole should be a last option for individuals . . . [w]hose travel to the
United States presents a significant public benefit.” 9 F.A.M. § 202.3-
3(B)(1)(c)(4). Finally, only a “law enforcement agenc[y]” is authorized to request
a parole permit, and the law enforcement agency must make its request “through
Department of Justice channels.” 9 F.A.M. 202.3-3(B)(2)(c).
12
No. 81680-2-I/13
Once a parole permit is issued, the Department of Homeland Security
requires that the requesting law enforcement agency track the activities of the
parolee while the parolee is located in the United States:
The requesting law enforcement agency is responsible for
tracking the parolee’s activities while in the United States and
throughout the duration of the parole period, as well as for providing
case updates to the Parole [and Law Enforcement Programs] Unit.
This information (along with possible parole extensions, parole
terminations, the date the parolee departs, and if the parolee
absconds) is also updated in [the Parole Case Tracking System].
The requesting law enforcement agency provides a final update to
the Parole Unit when the parolee has completed his or her parole,
and the Parole Unit closes the case in [the Parole Case Tracking
System] once the parolee’s departure from the United States is
confirmed.
PRIVACY IMPACT ASSESSMENT, supra, at 4. Thus, as the requesting law
enforcement entity, the sheriff is required to be responsible for both the security
and behavior of the parolee during the parolee’s time in the United States.
Before Donnelly filed his first appeal, the sheriff applied for a substantial
public benefit parole permit so that Donnelly could enter the United States to
serve the remainder of the sentence imposed on him. That application was
granted on November 13, 2017. The permit issued authorized Donnelly to enter
the United States on December 5, 2017. At that point, Donnelly was perfectly
able to enter the United States on December 5, 2017, and complete his
sentence, as envisioned by the sentencing judge.8
After Homeland Security issued that parole permit, however, Donnelly filed
a motion in the superior court wherein he complained that, if he were required to
8The sentencing judge has since retired. On remand, all decisions were made by his
successor judge.
13
No. 81680-2-I/14
serve the sentence at that time, he would “miss Christmas with [his] family.”
Donnelly also protested that, during the holiday season, the cost of rental
housing in San Juan County would “be a great deal more expensive than the one
[he] had for October and November.” Finally, after Donnelly entered the United
States on December 5, 2017, pursuant to the parole permit that the sheriff had
obtained for him from Homeland Security, Donnelly chose not to serve the
sentence as arranged by the sheriff. Rather, Donnelly filed a motion to stay the
sentence, filed an ultimately meritless appeal, and returned to Canada.
In the declaration of the sheriff that was attached to the State’s motion for
revision, the sheriff stated that he would be willing to apply to Homeland Security
for a second parole permit, but only if Donnelly was required to serve the
remainder of the sentence in total confinement. The sheriff provided several
reasons for this.
First, the sheriff stated that “Mr. Donnelly insists that he is entitled to
service of his sentence as ‘originally negotiated.’ He has been terminated from
the Work Crew program and therefore should serve the remainder of his
sentence in jail.”
Second, the sheriff explained that,
because Homeland Security requires me to track the parolee, I am
unwilling to apply for a second [parole permit] that would include
conditions such as those that were imposed before, regarding work
crew, days off, and monitoring with an ankle bracelet. We do not
have ankle bracelet monitoring 24/7, therefore this . . . form of
tracking is not acceptable to me.
Third, the sheriff stated:
14
No. 81680-2-I/15
I must also add that I am not happy that I applied for a [parole
permit] with the expectation that Mr. Donnelly would serve his
sentence and he declined to remain in San Juan County to make
that happen. Yes, he had a right to appeal Judge Eaton’s decision,
but he also must face the consequence of his choice to return to
Canada and its effect on his power to return to the United States to
finish his sentence. The original substantial benefit parole was for
a duration that extended into February 2018 which allowed him to
complete all things required under the supervision of this office.
Finally, the sheriff explained:
I question the value or significant public benefit of multiple
applications for accommodating a person for their business and
personal desires without considering the need to accomplish the
punishment ordered by Judge Eaton. Of course, the defendant is
entitled to serve his sentence, but in his special status as a parolee
he does not have a right to do it in pieces and return home as
needed for personal reasons. Finally, I questioned the substantial
public benefit for a person who voluntarily returned to Canada after
first parole was granted for the purpose of completing his sentence.
The defendant has shown to me that he has a propensity to say
one thing and do another, which creates an unacceptable risk for
me as the head of the “requesting law enforcement agency” who
takes on tracking requirements of the Department of Homeland
Security.
Given Donnelly’s behavior after the sheriff convinced Homeland Security
to issue the first parole permit on November 13, 2017, the sheriff expressed that,
in essence, he now believed that Donnelly was not a sincere person who truly
desired to serve his sentence and pay his debt to society (as he first believed)
but, rather, was an insincere person who was dedicated to avoiding as much
punishment as possible by any means available. As a result of this change of
perception, the sheriff expressed the reasonable belief that Donnelly would not
be a secure prisoner if he was not subject to total confinement. In short, the
sheriff’s view of Donnelly’s security risk had changed based on Donnelly’s own
behavior. Especially considering the fact that Donnelly had engaged in a violent
15
No. 81680-2-I/16
criminal act in the United States, the sheriff’s evaluation of his security risk was
an important fact that the superior court erred by ignoring.
The sheriff was entitled to decline to apply for a second parole permit
unless Donnelly was to be subject to total confinement. In making this
determination, he acted within the discretion afforded him as an elected public
safety official.
V
Having clarified the authority of the superior court to enforce its judgment
and sentence and the circumstances under which the sheriff was willing to apply
for a second parole permit, we now turn to the merits of the State’s challenge on
appeal. The State contends that the superior court erred by awarding Donnelly
credit for time served at liberty. Because no circumstances arose after our first
decision in this matter that entitle Donnelly to this form of equitable relief, we
agree.
Our Supreme Court has made clear the conditions that an applicant must
meet in order to be entitled to credit for time served at liberty:
[A] convicted person is entitled to credit against his sentence for
time spent erroneously at liberty due to the State’s negligence,
provided that the convicted person has not contributed to his
release, has not absconded legal obligations while at liberty, and
has had no further criminal convictions.
In re Pers. Restraint of Roach, 150 Wn.2d 29, 37, 74 P.3d 134 (2003).
In our first opinion in this matter, we held that, under the then-existing
facts, Donnelly was not entitled to credit for time served at liberty. Donnelly, No.
77816-1-I, slip op. at 11. Therefore, only circumstances arising after our decision
16
No. 81680-2-I/17
in that opinion could apply to qualify Donnelly for this form of equitable relief.
See Folsom v. County of Spokane, 111 Wn.2d 256, 263, 759 P.2d 1196 (1988)
(“‘It is . . . the rule that questions determined on appeal, or which might have
been determined had they been presented, will not again be considered on a
subsequent appeal if there is no substantial change in the evidence at a second
determination of the cause.’” (quoting Adamson v. Traylor, 66 Wn.2d 338, 339,
402 P.2d 499 (1965))).
After the sheriff obtained the parole permit that authorized Donnelly’s entry
into the United States on December 5, 2017, the sole reasons why Donnelly did
not serve the remainder of the sentence were the consequence of his own
actions. First, Donnelly sought a stay of the sentence and, thereafter, departed
the United States. The State opposed Donnelly’s motion to stay the sentence.
As such, Donnelly’s failure to serve the sentence when arranged by the sheriff
and permitted by Homeland Security was the result of his own conduct.
Furthermore, because the State opposed the motion to stay the sentence,
Donnelly’s inability to reenter the United States after he returned to Canada was
not the result of the State’s negligence.
Second, Donnelly departed the United States after he decided to pursue a
meritless appeal. See Donnelly, No. 77816-1-I. In that appeal, the State again
opposed Donnelly. See Donnelly, No. 77816-1-I. Therefore, Donnelly’s own
decision to file a meritless appeal contributed to his inability to reenter the United
States to serve the remainder of the sentence. Moreover, because the State
17
No. 81680-2-I/18
opposed Donnelly’s first appeal in this matter, Donnelly’s inability to reenter the
United States was, again, not in any way the result of the State’s negligence.
In any event, Donnelly was never released from serving the sentence. As
we explained in Donnelly, No. 77816-1-I at 10, “[t]he trial court . . . correctly ruled
that Donnelly was not released from his obligation to serve the sentence imposed
on him by the superior court.” Instead, Donnelly was terminated from the work
crew program after he failed to report. Donnelly, No. 77816-1-I at 9-10.
Additionally, Donnelly did not satisfy the statutory condition of community
restitution that it be completed within 24 months. See RCW 9.94A.680(2).
Accordingly, Donnelly remains subject to the underlying sentence of total
confinement that was imposed by the superior court.
Following our decision in Donnelly, No. 77816-1-I, the superior court ruled
that Donnelly was entitled to credit for time served at liberty for several reasons.
First, the superior court reasoned:
Where the Sheriff controls the ability for Mr. Donnelly to enter the
country with a parole permit to serve the remainder of his sentence
and chooses not to obtain the permit, it is inequitable to allow Mr.
Donnelly to remain in limbo, with a sentence tolled that he cannot
fulfill, perhaps indefinitely.
Contrary to the superior court’s reasoning, the sheriff explained in his
declaration that he was willing to apply for a second parole permit, but only if
Donnelly was required to serve the remainder of the sentence in total
confinement. As already explained, the sheriff acted well within his discretion to
decline to apply for a second parole permit unless Donnelly was subject to total
confinement. With regard to the portion of Donnelly’s sentence that was
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originally authorized to be satisfied through work crew, the sheriff had the
authority to transfer Donnelly “to the appropriate county detention facility without
further court order.” RCW 9.94A.731(2). Furthermore, and contrary to the
superior court’s understanding, once the 24-month statutory period expired, the
superior court had the authority to deem the community restitution sentencing
condition not met and order Donnelly to serve in total confinement the remaining
term of the sentence.
Next, the superior court concluded that Donnelly was not at fault for
returning to Canada before he was initially denied entry into the United States:
The initial choice to return home was with the permission of the
Sheriff’s Office and after Mr. Donnelly had done some due diligence
with regards to his ability to re-enter the United States following
conviction.
However, this reasoning directly contradicts our first opinion in this matter:
Donnelly’s predicament was not the result of negligence by the
State. To the contrary, he executed a guilty plea statement in
which he acknowledged that he understood the possibility that his
conviction could render him excludable from the United States.
Nevertheless, he exercised no diligence in discerning whether he
would be able to enter the United States, when necessary to do so
to comply with the requirements of his sentence.
Donnelly, No. 77816-1-I, slip op. at 12 (emphasis added). On remand, the
superior court was without authority to set aside our expressed judgment and
substitute its own view of the matter. It erred by so doing.
Finally, the superior court reasoned that Donnelly could not be
disadvantaged as a result of pursuing a meritless appeal:
The second choice to return home was related to his choice to
pursue his legal right of appeal. It would not be appropriate for the
Court to “punish” Mr. Donnelly for appealing or to conclude that his
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No. 81680-2-I/20
choice to appeal is equivalent to contributing to the problem at
issue.
The superior court was wrong to so reason. Litigants often find
themselves in worse positions after filing an unsuccessful appeal. For example,
in civil cases, appellants have been required, following an unsuccessful appeal,
to either pay the opposing party’s attorney fees or fulfill their obligations pursuant
to a supersedeas bond. See, e.g., TMT Bear Creek Shopping Ctr., Inc. v.
PETCO Animal Supplies, Inc., 140 Wn. App. 191, 214-15, 165 P.3d 1271 (2007)
(holding that respondent was entitled to an award of attorney fees on appeal from
appellant); Holmquist v. King County, 192 Wn. App. 551, 558, 368 P.3d 234(2016) (“Washington courts follow the established rule that once an appeal has
failed, the supersedeas obligor’s ‘liability for damages . . . is absolute.’” (alteration
in original) (quoting John Hancock Mut. Life Ins. Co. v. Hurley, 151 F.2d 751, 755
(1st Cir. 1945))).
Likewise, in criminal cases, defendants have, upon remand from an
appeal, been resentenced with higher offender scores as a result of an
intervening conviction. See, e.g., State v. Collicott, 118 Wn.2d 649, 668-69, 827
P.2d 263 (1992). Additionally, nonindigent criminal defendants have been
required to pay court costs for an unsuccessful appeal. See, e.g., State v.
Gonzales, 198 Wn. App. 151, 155-56, 392 P.3d 1158 (2017). Cases are legion
in which a party—in either a civil or criminal matter—is worse off for pursuing a
meritless appeal. There is nothing unjust or unusual about this outcome.
Donnelly decided to depart the United States after filing what proved to be
a meritless appeal. Thus, he alone contributed to his inability to reenter the
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No. 81680-2-I/21
United States, after remand, to serve the remainder of the sentence. It is of no
consequence that he now finds himself in a worse position after filing the
unsuccessful appeal. Most importantly, the State in no way contributed to
Donnelly’s decision to act in this way.
Accordingly, the superior court erred by granting Donnelly’s motion to
amend the warrant of commitment.9
VI
On cross appeal, Donnelly asserts that the superior court erred by denying
his petition for a writ of mandamus to compel the sheriff to apply for a second
parole permit. Because the sheriff did not have a clear duty to apply for a parole
permit, we disagree.
“[M]andamus is an extraordinary writ.” Mower v. King County, 130 Wn.
App. 707, 718, 125 P.3d 148 (2005).10 Indeed, “[a] party seeking a writ of
mandamus must show that (1) the party subject to the writ has a clear duty to
act; (2) the petitioner has no plain, speedy, and adequate remedy in the ordinary
course of law; and (3) the petitioner is beneficially interested.” Seattle Times Co.
v. Serko, 170 Wn.2d 581, 588-89, 243 P.3d 919 (2010) (citing RCW 7.16.160,
.170)).
The State also contends that the superior court erred by ruling that Donnelly’s motion to
9
amend the warrant of commitment was timely. According to the State, Donnelly’s motion was
untimely under RCW 10.73.090 because it amounted to a collateral attack on the judgment and
sentence and was filed more than one year after the judgment became final. We disagree.
The issue before the superior court was the enforcement of a judgment and sentence.
Donnelly’s motion to amend the warrant of commitment did not amount to a collateral attack on
the judgment and sentence. Instead, this motion merely sought a means by which Donnelly’s
sentence could be satisfied in equity. Therefore, the one-year time constraint under RCW
10.73.090 did not apply to Donnelly’s motion to amend the warrant of commitment.
10 We review de novo a trial court’s decision regarding the issuance of a writ of
mandamus. Mower, 130 Wn. App. at 719.
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No. 81680-2-I/22
“The duty to act must be ministerial in nature rather than discretionary.”
Seattle Times Co., 170 Wn.2d at 589. Moreover, “‘[w]here the law prescribes
and defines the duty to be performed with such precision and certainty as to
leave nothing to the exercise of discretion or judgment, the act is ministerial.’”
SEIU Healthcare 775NW v. Gregoire, 168 Wn.2d 593, 599, 229 P.3d 774 (2010)
(internal quotation marks omitted) (quoting State ex rel. Clark v. City of Seattle,
137 Wash. 455, 461, 242 P. 966 (1926)). Accordingly, “mandamus can direct an
officer or body to exercise a mandatory discretionary duty, but not the manner of
exercising that discretion.” Mower, 130 Wn. App. at 719.
Donnelly contends that, pursuant to the following statute, the sheriff was
required to apply for a parole permit so the Donnelly could reenter the United
States to complete the remainder of the sentence:
When any person shall be sentenced to be imprisoned in the
penitentiary or county jail, the clerk of the court shall, as soon as
may be, make out and deliver to the sheriff of the county, or his or
her deputy, a transcript from the minutes of the court of such
conviction and sentence, duly certified by such clerk, which shall be
sufficient authority for such sheriff to execute the sentence, who
shall execute it accordingly.
RCW 10.70.020.
By its terms, this statute applies when a person is sentenced to be
imprisoned in total confinement. The sheriff made clear in his declaration that, if
Donnelly was ordered to serve the remainder of his sentence in total
confinement, he was willing to both apply for a second parole permit and
undertake the tracking requirements imposed by the Department of Homeland
Security. In any event, nothing in RCW 10.70.020 imposes a clear duty on
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No. 81680-2-I/23
behalf of the sheriff to apply to the Department of Homeland Security for a parole
permit.
Accordingly, Donnelly’s assignment of error fails.
Affirmed in part, reversed in part, and remanded for further proceedings
consistent with this opinion.
WE CONCUR:
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