STATE v. MURRAY (2003)

This is an appeal from an order authorizing a sentence modification.   Sally Jean Murray was sentenced to serve 365 days, with credit for one day served, in a county work release program, a form of partial confinement.   Murray filed a motion asking the court to permit her to serve the last six months of the sentence in home detention.   The trial court granted Murray's motion.   The State appeals.

Former RCW 9.94A.150 ¹ allows postsentence modification in limited circumstances.   Former RCW 9.94A.150(5) ² authorizes a sentence modification to permit an offender to serve the final six months, or less, of his or her sentence “in partial confinement designed to aid the offender in finding work and reestablishing himself or herself into the community.”   This provision clearly allows for the modification of a sentence served in total confinement to a form of partial confinement.   We interpret former RCW 9.94A.150(5) also to allow modification from one type of partial confinement to another, when the other requirements of the section are met.   The trial court properly applied former RCW 9.94A.150(5) to Murray.

We affirm.

FACTS

Sally Jean Murray was an attorney licensed to practice law in Washington State.   She embezzled $73,063.89 from her clients.   Murray and the State entered a plea agreement whereby the State agreed to dismiss two counts of first degree theft and one count of second degree theft in return for Murray's promise to join in the State's sentence recommendation of 12 months' incarceration with 30 days converted to community service.   On November 17, 2000, Murray pled guilty to four counts of first degree theft.   On March 16, 2001, Murray was sentenced to 365 days in jail followed by 12 months of community supervision upon her release.³  The trial court rejected home detention, but authorized Murray to serve her time in a work release facility.   The order did not provide for alternative forms of partial confinement, nor did it provide for movement from work release to home detention.   On April 30, 2001, Murray requested that her sentence be modified to allow for home detention.   Emphasizing that Murray be required “to have to report to jail at night,” the court denied her motion for home detention.   Murray began serving her sentence on April 30, 2001.

On October 15, 2001, Murray again filed a motion requesting she be allowed to finish her sentence in home detention.   Over the State's objection that postjudgment modification of Murray's sentence exceeded the court's authority and breached her plea agreement, the trial court granted Murray's motion.   The court denied the State's motion to stay execution of the remainder of Murray's sentence pending appeal.   The State appeals the trial court's authorization of Murray's sentence modification as exceeding its authority under former RCW 9.94A.150 and as a breach of Murray's plea agreement.

ANALYSIS

I. Standard of Review

 Whether a trial court has exceeded its statutory authority under the Sentencing Reform Act of 1981 (SRA) is an issue of law, which we review independently.  State v. Hale, 94 Wash.App. 46, 54, 971 P.2d 88 (1999).

II. Mootness

 Murray argues that because she completed her sentence in December 2001, the court should dismiss the State's appeal as moot.  “But this issue is a matter of continuing public interest, ‘capable of repetition yet easily evading review.’ ” Hale, 94 Wash.App. at 52, 971 P.2d 88 (quoting State v. Clark, 91 Wash.App. 581, 584, 958 P.2d 1028 (1998)).   In order to clarify the sentencing court's authority and to provide future guidance, we address this issue here.  Hale, 94 Wash.App. at 52, 971 P.2d 88.

III. Standing

 The State has standing to appeal the sentence modification at issue here.   Former RCW 9.94A.210(1) ⁴ states that “[a] sentence within the standard sentence range for the offense shall not be appealed.   For purposes of this section, a sentence imposed on a first-time offender ․ shall also be deemed to be within the standard sentence range for the offense and shall not be appealed.”   However, this appeal is not a challenge to a standard-range sentence.   It is a challenge to the modification of a prior standard-range sentence.   A sentencing court has discretion in sentencing only where the SRA so authorizes.  State v. Shove, 113 Wash.2d 83, 89 n. 3, 776 P.2d 132 (1989).   When a trial court exceeds its sentencing authority under the SRA, it commits reversible error.  State v. Hale, 94 Wash.App. at 53, 971 P.2d 88.   Former RCW 9.94A.210(1) does not prevent the State from appealing a sentence modification that exceeds the trial court's authority or is legally erroneous.  State v. DeBello, 92 Wash.App. 723, 725, 964 P.2d 1192 (1998) (citing State v. Bernhard, 108 Wash.2d 527, 530, 741 P.2d 1 (1987), overruled on other grounds by State v. Shove, 113 Wash.2d 83, 88, 776 P.2d 132 (1989)).

IV. Sentence Modification

 We are presented with the issue of whether a trial court has authority to modify a sentence.   The original sentence did not purport to reserve such authority.   Here, the trial court reasoned at the time of modification that it had the inherent authority to modify Murray's sentence to permit her to serve the balance of her sentence in home detention in lieu of remaining in work release.   Both home detention and work release are forms of partial confinement.   Murray argues that former RCW 9.94A.150 provides the sentencing court with statutory authority to modify her sentence.   The State argues that the trial court had no authority to order a postsentencing modification of Murray's sentence.

The parties agree that the earned release statute, former RCW 9.94A.150, governs Murray's release.   Former RCW 9.94A.150 allows for postsentence modification in limited circumstances.   It provides in part:

No person serving a sentence imposed pursuant to this chapter and committed to the custody of the department shall leave the confines of the correctional facility or be released prior to the expiration of the sentence except as follows:

․

(3) An offender may leave a correctional facility pursuant to an authorized furlough or leave of absence.   In addition, offenders may leave a correctional facility when in the custody of a corrections officer or officers;

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(5) No more than the final six months of the sentence may be served in partial confinement designed to aid the offender in finding work and reestablishing himself or herself in the community;

․

Notwithstanding any other provisions of this section, an offender sentenced for a felony crime listed in RCW 9.94A.120(4) as subject to a mandatory minimum sentence of total confinement shall not be released from total confinement before the completion of the listed mandatory minimum sentence for that felony crime of conviction unless allowed under RCW 9.94A.120(4).

Murray argues that the trial court was authorized to release her from the work release facility to home detention under former RCW 9.94A.150(3).  However, former RCW 9.94A.150(3) is inapplicable because the trial court's order does not purport to furlough Murray or to grant her a leave of absence.

Murray also argues that she should be allowed to serve the remainder of her sentence in home detention under former RCW 9.94A.150(5).  That section grants authority to release an eligible offender, which includes offenders in total confinement, to partial confinement for no more than the final six months of a sentence.

RCW 9.94A.030(31) defines “[p]artial confinement” as:

[C]onfinement for no more than one year in a facility or institution operated or utilized under contract by the state or any other unit of government, or, if home detention or work crew has been ordered by the court, in an approved residence, for a substantial portion of each day with the balance of the day spent in the community.

RCW 9.94A.030(31).  “Home detention” is “a program of partial confinement available to offenders wherein the offender is confined in a private residence subject to electronic surveillance.”  RCW 9.94A.030(26).  “Work release” is “a program of partial confinement available to offenders who are employed or engaged as a student in a regular course of study at school.”  RCW 9.94A.030(48).

RCW 9.94A.150(3) and (5) are silent as to who may authorize an offender's release.   However, Division III of this court considered this issue in State v. Dana, 59 Wash.App. 667, 800 P.2d 836 (1990).

Dana was found guilty of extortion and sentenced to six months' confinement.   The sentencing court granted him a furlough to attend a welding class, which he needed to maintain his welding certification.  Dana, 59 Wash.App. at 668, 800 P.2d 836.   The issue in Dana was whether this statute granted sentencing judges, or county executives, the authority to grant furloughs and order partial confinements.  Dana, 59 Wash.App. at 671, 800 P.2d 836.   The court found no statute that placed the responsibility for sentencing matters with the county executive in charge of the jail.   The judicial branch, however, “[t]raditionally ․ has been involved in sentencing.”  Dana, 59 Wash.App. at 671, 800 P.2d 836.   The court found that “the authority implied in former RCW 9.94A.150(3) and (5) to grant furloughs and order partial confinement resides in the sentencing court.”  Dana, 59 Wash.App. at 672, 800 P.2d 836.⁵

 We will reverse a sentencing court's decision only if we find a clear abuse of discretion or misapplication of law.  State v. Porter, 133 Wash.2d 177, 181, 942 P.2d 974 (1997).   The question here is whether the trial court abused its discretion when it permitted Murray to transfer from a work release program to home confinement for the final portion of her sentence.

The State does not assert that Murray failed to meet the threshold eligibility requirements for former RCW 9.94A.150. Former RCW 9.94A.150(5) states that “no more than the final six months of a sentence may be served in partial confinement.”   When the trial court entered its order authorizing partial confinement, it affected six months or less of Murray's sentence.⁶  Murray was thus at the point in her sentence where the court had authority to release her from total confinement to home detention.   It defies logic to hold the court could make a less drastic modification of her sentence-from work release to home detention.   Also, Murray was employed during her residence at the work release facility, and would be required to remain employed while in home detention.

The sole question remaining is whether the modification of Murray's sentence was designed “to aid [Murray] in finding work and reestablishing ․ herself into the community.”   Former RCW 9.94A.150(5).  Murray alleged in her October 15, 2001 motion that she sought home detention because she desired to care for her sick mother, needed psychotherapy available only outside of the jail setting, and had exhausted the remedial programs available at the work release facility.   The factual basis of Murray's claims is not challenged in the record before us.   The reasons given by Murray for seeking home detention may reasonably be interpreted as helping to reestablish her into the community.   The facts in the record provided a sufficient basis for the trial court to authorize Murray to serve the final portion of her sentence in home detention.   We find the trial court had authority under the statute for the modification it ordered and did not abuse its discretion.

V. Violation of Plea Bargain

The State also asserts that the trial court's order authorizing Murray to serve the remainder of her sentence in home detention was an abuse of discretion because it breached her plea agreement.   Sentences, including plea agreements, are subject to statutory release provisions in former RCW 9.94A.150. There is no basis for the State's claim that Murray violated her plea agreement by filing a motion seeking modification of her sentence to allow home detention in the final six month's of her sentence.

CONCLUSION

Although the trial court cited inherent authority as the basis for its decision, it had statutory authority for its order and had a proper factual basis.   We find no abuse of discretion.

We affirm.

FOOTNOTES

1.   Former RCW 9.94A.150 (2000) (recodified as RCW 9.94A.728 by Laws 2001, Ch. 10, § 6).

2.   Former RCW 9.94A.150(5) (2000) (recodified as RCW 9.94A.728(6) by Laws 2001, Ch. 10, § 6).

3.   Murray received one day's credit for time already served, so her remaining sentence was for 364 days.

4.   Former RCW 9.94A.210 (2000) (recodified as RCW 9.94A.585 by Laws 2001, ch. 10, § 6).

5.   Significantly, the Legislature has amended former RCW 9.94A.150 at least six times since the court's decision in Dana, but has not amended the statute to contradict the conclusion in Dana that the trial court had authority to enter sentence modification orders under former RCW 9.94A.150(3) and (5).

6.   Murray served her time in home detention from October 17, 2001 to December 27, 2001, when she was released from custody.   Murray's release from home detention is not challenged here.

APPELWICK, J.

BECKER, C.J., and COX, J., concur.