151 Wn. App. 186, *; 210 P.3d 1068, **;
2009 Wash. App. LEXIS 1650, ***

The State of Washington, Respondent, v. Cliff Alan Jones, Appellant.

No. 37002-6-II

COURT OF APPEALS OF WASHINGTON, DIVISION TWO

151 Wn. App. 186; 210 P.3d 1068; 2009 Wash. App. LEXIS 1650

February 12, 2009, Oral Argument
July 7, 2009, Filed

OPINION


[**1069] [*187] ¶1 Quinn-Brintnall, J. ? Cliff Alan Jones pleaded guilty to first degree child molestation and the trial court sentenced [*188] him to 130 months of incarceration and 36 months of community custody. We granted Jones's personal restraint petition (PRP) and remanded for resentencing. See Order Granting Pet., In re Pers. Restraint of Jones, No. 34872-1-II (Jan. 9, 2007). The trial court resentenced Jones to 51 months of incarceration and 36 months of community custody, and it credited the 81 months Jones spent incarcerated toward his 51-month prison sentence, but it did not apply the time he spent incarcerated in excess of 51 months toward his community custody term. Jones appeals his [***2] sentence, arguing that the trial court was statutorily required to apply the time he spent in prison in excess of 51 months toward his community custody term. Jones also argues that the trial court's refusal to credit time served toward his community custody term violates his right to be free from double jeopardy. Because community custody is that portion of an offender's sentence spent in the community, the trial court did not err when it declined to credit Jones with time served toward his community custody term. We affirm.

FACTS

¶2 Jones pleaded guilty to first degree child molestation committed between November 1998 and November 1999. On November 20, 2000, the trial court sentenced Jones to an exceptional sentence of 130 months incarceration and 36 months community custody. 1 Jones filed a PRP, arguing that the trial court erred when it calculated his offender score by considering his prior washed-out juvenile offenses when the law at the time he committed his offenses precluded the trial court from considering them. The State conceded error and, on January 9, 2007, we granted Jones's petition and remanded for resentencing.

FOOTNOTES

1 We affirmed Jones's sentence in an unpublished opinion. See [***3] State v. Jones, noted at 109 Wn. App. 1063 (2001). We also dismissed a later PRP Jones filed challenging his exceptional sentence. See Order Dismissing Pet., In re Pers. Restraint of Jones, No. 29487-7-II (Mar. 4, 2003).


[*189] ¶3 On April 30, 2007, the trial court amended Jones's original judgment and sentence to reflect an offender score of zero and resentenced Jones to 51 months of incarceration and 36 months of community custody. By this time, Jones had already served 81 months in incarceration. The trial court credited Jones with time served toward his 51-month incarceration term and ordered his release. But the trial court did not credit the time Jones served in excess of 51 months toward his 36-month community custody term.

¶4 On September 21, 2007, Jones filed a CrR 7.8(b)(4) motion for relief from judgment, arguing that the judgment was invalid because his prison term, when added to his community custody term, exceeded the statutory maximum penalty for the offense. On October 18, 2007, Jones filed a second memorandum of authorities, arguing that the trial court should credit time he spent incarcerated in excess of 51 months toward his 36-month community custody term. The State asserted that [***4] Jones's sentence did not exceed the statutory maximum because, pursuant to RCW 9A.44.083 and former RCW 9A.20.021 (1982), the statutory maximum for Jones's offense, a class A felony, was life in prison. The State also argued that the trial court did not have authority to credit Jones with time served in incarceration toward his community custody term under the plain language of former RCW 9.94A.170(3) (1993). 2

FOOTNOTES

2 Former RCW 9.94A.170(3) has been recodified without substantive change at RCW 9.94A.625(3). This opinion will hereafter refer to former RCW 9.94A.170, the statutory provision in effect at the time Jones committed his offense.


[**1070] ¶5 At an October 19, 2007 hearing on the CrR 7.8(b)(4) motion, the trial court made an oral ruling denying Jones's request for relief from judgment. On November 2, 2007, the trial court issued its findings of fact and conclusions of law. The trial court found that Jones's judgment and sentence were valid because the statutory maximum for Jones's offense was life in prison. The trial court also found that a community custody term is distinguishable from a prison term because it serves a unique purpose, particularly in regard to sex offenses. Additionally, the [***5] trial court determined [*190] that it had no statutory authority to credit Jones with time served in excess of 51 months toward his community custody term because, under the plain language of former RCW 9.94A.170(3), 3 ??[a]ny period of community custody, community placement, or community supervision shall be tolled during any period of time the offender is in confinement for any reason? (Emphasis added).? Clerk's Papers at 45. Jones timely appeals the trial court's denial of his CrR 7.8 motion for relief from judgment.

FOOTNOTES

3 The record cites the renumbered statutory provision, RCW 9.94A.625(3).


ANALYSIS

¶6 Jones argues that, under former RCW 9.94A.120(16) (1997), 4 the trial court was required to credit prison time served in excess of that ordered toward his community custody term. 5 The State concedes that Jones was incarcerated beyond his standard range sentence of 51 months but argues that, under the plain language of former RCW 9.94A.170(3), Jones's community custody term was tolled while he was incarcerated. Thus, the central issue underlying this appeal is whether Jones's community custody term began at the completion of his 51-month incarceration term or whether it was tolled until he was [***6] actually released into the community.

FOOTNOTES

4 Former RCW 9.94A.120(16) has been recodified at RCW 9.94A.505(6). This opinion will hereafter refer to former RCW 9.94A.120(16), the statutory provision in effect at the time Jones committed his offense. Former RCW 9.94A.120(16) states, ?The sentencing court shall give the offender credit for all confinement time served before the sentencing if that confinement was solely in regard to the offense for which the offender is being sentenced.?

5 Jones does not reassert his argument below that his sentence was invalid for exceeding the statutory maximum penalty for his offense.


[1, 2] ¶7 We review issues of statutory interpretation de novo. State v. Alvarado, 164 Wn.2d 556, 561, 192 P.3d 345 (2008). Our purpose when interpreting a statute is to determine and enforce the intent of the legislature. Alvarado, 164 Wn.2d at 561-62. Where the meaning of statutory language is plain on its face, we must give effect [*191] to that plain meaning as an expression of legislative intent. Alvarado, 164 Wn.2d at 562. In discerning the plain meaning of a provision, we consider the entire statute in which the provision is found, as well as related statutes or other provisions in the same [***7] act that disclose legislative intent. Alvarado, 164 Wn.2d at 562.

[3] ¶8 Former RCW 9.94A.170(3) states:

Any period of supervision shall be tolled during any period of time the offender is in confinement for any reason. However, if an offender is detained pursuant to RCW 9.94A.207 or 9.94A.195 and is later found not to have violated a condition or requirement of supervision, time spent in confinement due to such detention shall not toll to [the] period of supervision.

(Alteration in original.)

¶9 Division Three of this court recently addressed whether former RCW 9.94A.170(3) 6 prohibited a trial court from crediting time spent incarcerated in excess of that ordered toward the offender's community custody term. In re Pers. Restraint of Knippling, 144 Wn. App. 639, 183 P.3d 365 (2008). Like Jones, Knippling similarly challenged the trial court's refusal to credit time served in incarceration toward his community custody term following resentencing that placed Knippling in confinement for 24 months beyond his sentence. In re Knippling, 144 Wn. App. at 641-42. The Knippling court found that the plain [**1071] language of former RCW 9.94A.170(3) was not controlling because it must be read in the context of the entire sentencing scheme. [***8] 144 Wn. App. at 642. The Knippling court then looked to RCW 9.94A.715(1) to determine when an offender's community custody term begins. 144 Wn. App. at 642. RCW 9.94A.715(1) 7 states in part that ?community custody shall begin ? [u]pon completion of the term of confinement.? The Knippling court relied on the statute's use of the term ?completion? rather than ?release? and held that Knippling's [*192] community custody term began when he completed his term of confinement, 24 months before he was actually released into the community. 144 Wn. App. at 642 n.3.

FOOTNOTES

6 The opinion refers to the renumbered provision, RCW 9.94A.625(3).

7 Identical language is found in former RCW 9.94A.120(10)(a), the provision in effect at the time Jones committed his offense.


¶10 The State asks that we reject Division Three's interpretation of the sentencing statutes and instead adopt the reasoning of the dissent in Knippling, which found that the ?for any reason? language in former RCW 9.94A.170(3) applied to time incarcerated in excess of that ordered and, thus, an offender's community custody term is tolled until he is actually released into the community. 144 Wn. App. at 643-44 (Sweeney, J., dissenting). The dissent also [***9] relied on RCW 9.94A.030(5), defining ?community custody? as ??that portion of an offender's sentence ? served in the community subject to controls placed on the offender's movement and activities by the department.?? Knippling, 144 Wn. App. at 643 (Sweeney, J., dissenting) (alteration in original) (quoting RCW 9.94A.030(5)). The State also points us to former RCW 9.94A.120(10)(a) and (c) 8 to distinguish the facts here from Knippling. We agree with the State and decline to follow the majority opinion in Knippling.

FOOTNOTES

8 The State cites the renumbered provision RCW 9.94A.710(3), but former RCW 9.94A.120(10) was the provision in effect at the time Jones committed his offense. Former RCW 9.94A.120(10) states in pertinent part:

(a) When a court sentences a person to the custody of the department of corrections for an offense categorized as a sex offense committed on or after June 6, 1996, the court shall, in addition to other terms of the sentence, sentence the offender to community custody for three years ? . The community custody shall begin ? upon completion of the term of confinement.

. ?

(c) At any time prior to the completion of a sex offender's term of community custody, [***10] if the court finds that public safety would be enhanced, the court may impose and enforce an order extending any or all of the conditions imposed pursuant to this section for a period up to the maximum allowable sentence for the crime as it is classified in chapter 9A.20 RCW, regardless of the expiration of the offender's term of community custody.




¶11 The Knippling court's conclusion that an offender's community custody term may begin before the offender is released into the community conflicts with the statute's definition of ?community custody.? Former RCW 9.94A.030(4) (1997) defines ??[c]ommunity custody?? as ?that portion of an inmate's sentence of confinement ? served in [*193] the community subject to controls placed on the inmate's movement and activities by the department of corrections.? (Emphasis added.)

¶12 The requirement that an offender serve his community custody term ?in the community? is consistent with several of the stated purposes of Washington's sentencing statutes, such as ?[p]rotect[ing] the public,? and ?[o]ffer[ing] the offender an opportunity to improve him[-] or herself.? Former 9.94A.010(4), (5) (1981). Requiring an offender, particularly a sex offender, to serve his community [***11] custody term ?in the community? serves the purposes of helping the offender ?improve him[self]? by providing the offender with time and resources necessary to reintegrate into the community, while at the same time ?[p]rotect[ing] the public? by subjecting the offender to controls by the Department of Corrections. Former RCW 9.94A.010(4), (5). The legislature has noted the vital role community custody plays in a sex offender's reintegration into the community.

The legislature finds that improving the supervision of convicted sex offenders in the community upon release from incarceration is a substantial public policy goal, in that effective supervision accomplishes [**1072] many purposes including protecting the community, supporting crime victims, assisting offenders to change, and providing important information to decision makers.

Laws of 1996, ch. 275, § 1.

¶13 Allowing Jones to begin his community custody term before his release into the community would contravene both the plain language of former RCW 9.94A.030(4), which defines ??[c]ommunity custody?? as ?that portion of an inmate's sentence of confinement ? served in the community,? and the ?substantial public policy goal? of ?improving the [***12] supervision of convicted sex offenders in the community upon release from incarceration.? (Emphasis added); see Laws of 1996, ch. 275, § 1.

¶14 We also note that Knippling is inconsistent with our Supreme Court's recognition that ?[b]y design, the whole [*194] ?period? of community custody must be served in the community. ? [A]ny time an offender spends in jail does not count toward serving a community custody sentence.? In re Pers. Restraint of Dalluge, 162 Wn.2d 814, 815, 177 P.3d 675 (2008).

¶15 We respectfully disagree with the majority in Knippling and find that the trial court did not err when it refused to credit Jones's incarceration time in excess of 51 months toward his 36-month community custody term. Accordingly, we affirm.

Double Jeopardy

¶16 Next, Jones argues that the trial court's refusal to credit his community custody term with time served in excess of 51 months violates his right to be free from double jeopardy. We disagree.

[4, 5] ¶17 The United States Constitution provides that a person may not be ?subject for the same offense to be twice put in jeopardy of life or limb.? U.S. Const. amend. V. And the Washington State Constitution provides that a person may not be ?twice put in jeopardy for the same offense.? [***13] Wash. Const. art. I, § 9. This provision of the Washington State Constitution provides the same protection against double jeopardy as the Fifth Amendment to the federal constitution. In re Pers. Restraint of Orange, 152 Wn.2d 795, 815, 100 P.3d 291 (2004). One aspect of double jeopardy protects a defendant from being punished multiple times for the same offense. State v. Adel, 136 Wn.2d 629, 632, 965 P.2d 1072 (1998).

[6, 7] ¶18 Because Jones's double jeopardy claim does not involve the consequences of a prior trial, we merely examine whether the legislature intended to require that Jones serve his mandatory 36-month community custody term in the community notwithstanding the time he spent incarcerated in excess of that authorized by Jones's standard sentencing range. See State v. Truong V. Nguyen, 134 Wn. App. 863, 868, 142 P.3d 1117 (2006) (?unless the question involves the consequences of a prior trial, double jeopardy analysis is an [*195] inquiry into legislative intent?), review denied, 163 Wn.2d 1053, cert. denied, 129 S. Ct. 644 (2008); State v. Sulayman, 97 Wn. App. 185, 190, 983 P.2d 672 (1999) (??the Double Jeopardy Clause does no more than prevent the sentencing court from prescribing greater punishment [***14] than the legislature intended??) (quoting Jones v. Thomas, 491 U.S. 376, 381, 109 S. Ct. 2522, 105 L. Ed. 2d 322 (1989)).

[8] ¶19 Here, former RCW 9.94A.120(10) clearly states the legislature's intent that trial courts sentence convicted sex offenders to a mandatory 36-month community custody term. And, under former RCW 9.94A.170(3), the legislature also stated its intent that an offender's community custody term does not begin until he is released into the community. Accordingly, the sentencing court did not violate Jones's right to be free from double jeopardy, and we affirm.

Penoyar, A.C.J., and Houghton, J., concur.

152 Wn. App. 97, *; 215 P.3d 232, **;
2009 Wash. App. LEXIS 2253, ***

The State of Washington, Respondent, v. Samuel W. Donaghe, Appellant.

No. 37008-5-II

COURT OF APPEALS OF WASHINGTON, DIVISION TWO

152 Wn. App. 97; 215 P.3d 232; 2009 Wash. App. LEXIS 2253

March 30, 2009, Oral Argument
September 3, 2009, Filed

OPINION


[*100] [**234] ¶1 Hunt, J. ? Samuel Donaghe appeals the trial court's denial of his motion to issue a RCW 9.94A.637(1) certificate of discharge for his rape convictions and sentences. 1 Donaghe argues that the trial court acted outside its authority when it (1) determined that the community placement period of his sentence tolled during his confinement as a sexually violent predator (SVP) at the Special [*101] Commitment Center (SCC); and (2) refused to issue a certificate of discharge, despite a letter from the Washington Department of Corrections to Donaghe (DOC letter), which he claims demonstrates that he has completed all requirements of his sentence, thus making him eligible for RCW 9.94A.637(1) discharge. We hold that (1) by virtue of Donaghe's subsequent and [***2] ongoing SCC confinement, his community placement period has not yet begun; (2) therefore, he has not completed the community placement portion of his rape sentences; and (3) the trial court did not err in refusing to issue a certificate of discharge under RCW 9.94A.637(1). We affirm.

FOOTNOTES

1 A certificate of discharge generally restores to an offender ?all civil rights lost by operation of law upon conviction.? RCW 9.94A.637(5).


FACTS

I. Rape Sentences, with Community Custody Component

¶2 On March 9, 1990, the State charged Donaghe with six counts of second degree rape of AT, a foreign exchange student living with Donaghe. On June 15, Donaghe entered an Alford 2 plea to one count of second degree rape and one count of third degree rape. 3

FOOTNOTES

2 North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970).

3 The record before us on appeal does not show whether the State dismissed the other originally charged counts.


¶3 On October 30, 1991, the trial court sentenced Donaghe to concurrent sentences of 42 months confinement for the second degree rape and 17 months for the third degree rape. The trial court also sentenced Donaghe to one year of community placement for these two rape convictions. [***3] 4 The trial court credited Donaghe with 19 months and 16 days for time served. 5 The trial court also ordered [*102] these rape conviction sentences to run concurrently with Donaghe's 13-month sentence for an apparently separate solicitation to commit assault conviction. 6 On June 8, 1994, after completing a sentence for an unrelated 1988 federal conviction, 7 Donaghe was transferred to Washington State custody to serve his sentences for the rape and solicitation convictions.

FOOTNOTES

4 Both Donaghe and the State consistently refer to this portion of Donaghe's sentence as ?community custody? in their briefing. But the sentencing document refers to the period as ?community placement,? for which RCW 9.94A.030 provides a different definition.

5 The record does not reflect where Donaghe served this time. Federal authorities arrested Donaghe in February 1990 for violating probation for a 1988 conviction (making a false statement in a passport application). When Donaghe pleaded guilty to the instant rape charges, the federal court had not yet revoked his probation. Given that federal authorities took Donaghe into custody before the State charged Donaghe with these rapes, Donaghe may have remained in federal [***4] custody during the Thurston County proceedings.

6 No further information about this solicitation offense appears in the record before us on appeal.

7 See supra note 5.


[**235] II. Involuntary Commitment Petition

¶4 While Donaghe was in confinement for his rape convictions, however, the State filed a petition to have him classified as an SVP under RCW 71.09.010. Before he was released, the State transferred him to the SCC for involuntary commitment proceedings, where he apparently remains today.

III. Request for Certificate of Discharge

¶5 On March 31, 2000, while still awaiting his civil SVP commitment trial, Donaghe moved the Thurston County Superior Court for certificates of discharge for his rape and solicitation convictions. In his reply to the State's response to his motion, Donaghe argued that the tolling statute in effect at the time of his 1991 sentencing required the court to determine tolling. 8 The State agreed that the 1991 [*103] statute applied because it was in effect when Donaghe committed the 1989 rapes.

FOOTNOTES

8 The statute formerly provided:

For confinement sentences, the date for the tolling of the sentence shall be established by the entity responsible for the confinement. For sentences involving supervision, [***5] the date for the tolling shall be established by the court, based on reports from the entity responsible for the supervision.

Former RCW 9.94A.170(4) (1988) (emphasis added).


¶6 The State also agreed that the trial court should issue a certificate of discharge for Donaghe's solicitation conviction. But the State argued against discharge of the judgment and sentence for his rape offenses on grounds that Donaghe had not fulfilled the community custody portion of his sentence, which had tolled while Donaghe resided at the SCC.

¶7 On May 19, the trial court denied Donaghe's motion with respect to the rape offenses. The clerk's minutes for this hearing indicate:

Court reviewed Judgment and Sentence. Court ruled that Mr. Donaghe has not served his community placement, so he is not entitled to a discharge. If there is to be a tolling of time, the Court is to make that decision. Court signed the ?Certificate and Order of Discharge Pursuant to RCW 9.94A.220? in 91-1-00389-4 cause.

Clerk's Papers (CP) at 77.

¶8 On November 2, 2007, the trial court heard Donaghe's renewed motion for a certificate of discharge for the two rape judgments and sentences. Adhering to its May 19, 2000 ruling, the trial court stated: [***6] ?The defendant's custodial detention tolls the running of the community placement requirement, and, thus, all aspects of the sentence have not yet been completed.? Report of Proceedings (Nov. 2, 2007) at 6-7.

¶9 After the trial court issued its ruling, Donaghe asserted that he had received a DOC letter stating that his ?community corrections situation? had been terminated. The trial court (1) stated that its present and previous rulings ?may need to be reconsidered? if such a letter existed; (2) stated that it would authorize a further hearing if Donaghe produced such a letter; and (3) instructed Donaghe to provide the letter to the trial court.

¶10 On November 7, Donaghe filed a motion for reconsideration, to which he attached the DOC letter. The DOC [*104] letter, dated January 23, 2006, and written by DOC Correctional Records Specialist Virginia Shamberg, stated:

Dear Mr. Donaghe:

This letter is in response to your request for conviction information and the dates of incarceration of the above named.

Mr. Donaghe was convicted out of Thurston County (cause # 901001516) on 10/30/91 for Rape 2nd and sentenced to a maximum term of 3 years & 6 months. He was convicted out of Thurston County (cause [***7] # 901001516) on 10/30/91 for Rape 3 and was sentenced to a maximum term of 1 year & 5 months. Mr. Donaghe was received at the Washington Corrections Center on 6.8.94 and released on 4/25/96. [9]

[**236] Mr. Donaghe was also convicted out of Thurston County (cause # 911003894) on 10/30/91 for Assault 2nd and sentenced to a maximum term of 1 year & 1 month.

He was on supervision with the Department of Corrections from 4/25/96 until 11/24/04 when these cases were terminated.

CP at 41.

FOOTNOTES

9 The record sheds no light on the discrepancy between the release date stated in this letter and the May 10, 1995 release date the State referenced in its memorandum opposing Donaghe's discharge.


¶11 On November 19, the trial court reheard Donaghe's motion for discharge. Citing RCW 9.94A.637(1), 10 Donaghe argued that the DOC letter constituted notification that he had completed the terms of his sentence and, thus, the statute required the court to issue a certificate of discharge.

FOOTNOTES

10 Donaghe quoted language from RCW 9.94A.637(1)(a), which provides:

When an offender has completed all requirements of the sentence, including any and all legal financial obligations, and while under the custody and supervision of the department, [***8] the secretary or the secretary's designee shall notify the sentencing court, which shall discharge the offender and provide the offender with a certificate of discharge by issuing the certificate to the offender in person or by by mailing the certificate to offender's last known address.




¶12 While recognizing that the DOC letter might constitute evidence that the DOC considered Donaghe's sentence complete, the trial court declined to issue the certificate of discharge on the grounds that (1) Donaghe had not fulfilled the community custody portion of his sentence as defined by [*105] the relevant statutes; (2) Donaghe's SVP civil commitment at SCC tolled the onset of the community custody portion of Donaghe's rape sentences; and (3) the court had previously decided essentially the same motion.

¶13 Donaghe appeals.

ANALYSIS

¶14 Donaghe argues that the trial court erred by refusing to issue him a certificate of discharge for his two rape convictions because (1) his community placement sentence began when he was transferred to the SCC; (2) the trial court did not have authority to toll his community placement because the applicable version of RCW 9.94A.625(4) vests that authority in the DOC, not the court; and [***9] (3) the DOC letter, stating that Donaghe's ?cases were terminated,? supports DOC's position that he has completed the community placement portion of his sentence. 11 We disagree.

FOOTNOTES

11 Donaghe also argues that, under the SVP civil commitment scheme, the State has authority to release him to a supervised period in the community under RCW 71.09.092 (conditional release to a less restrictive alternative). The implication is that this could substitute for community placement because the purposes are arguably similar. But such an argument raises ripeness issues: Nothing in the record indicates that Donaghe has been released from his SVP commitment to a less restrictive alternative; thus even if Donaghe could fulfill the community placement portion of sentence under such a conditional release, he would not be entitled to a certificate of discharge because the State has not yet released him into the community under RCW 71.09.092.


I. Donaghe's Community Placement Has Not Yet Started

¶15 The trial court determined that Donaghe was not entitled to a certificate of discharge because his term of community placement tolled while he was at the SCC as a SVP; accordingly, the parties' briefs focus on the tolling [***10] issue. We agree with the trial court that Donaghe is not entitled to a certificate of discharge because he has not completed his community placement term. But we rely on alternative grounds to support this conclusion. We hold [*106] that Donaghe's community placement term for his rape sentences did not commence because he was never ?in the community?; and because he has not yet begun any community placement, he cannot have completed that term. 12

FOOTNOTES

12 State v. Carroll, 81 Wn.2d 95, 101, 500 P.2d 115 (1972) (appellate court may sustain a trial court on any correct ground, even though that ground was not stated by the trial court).


A. Standard of Review

[1-3] ¶16 A statutory provision is not ambiguous unless it is subject to more than one reasonable interpretation. State v. Jacobs, 154 Wn.2d 596, 600-01, 115 P.3d 281 (2005). We review questions of statutory interpretation de novo. Id. at 600. When interpreting a statute, we seek to ascertain the legislature's intent. Id. ? ?[I]f [**237] the statute's meaning is plain on its face, then the court must give effect to that plain meaning as an expression of legislative intent.? ? Id. (alteration in original) (quoting Dep't of Ecology v. Campbell & Gwinn, LLC, 146 Wn.2d 1, 9-10, 43 P.3d 4 (2002)). We discern the ?plain meaning? of a statutory provision from the ordinary meaning of its language, as well as the general context of the statute, related provisions, and the statutory scheme as a whole. Id.

[4-6] ¶17 We view the provisions of an act in relation to each other and, if possible, harmonize the provisions to effect the act's overall purpose. State v. Bays, 90 Wn. App. 731, 735, 954 P.2d 301 (1998). We interpret statutes to give effect to all language in the statute and to render no portion meaningless or superfluous. State v. J.P., 149 Wn.2d 444, 450, 69 P.3d 318 (2003) (quoting Davis v. Dep't of Licensing, 137 Wn.2d 957, 963, 977 P.2d 554 (1999)). We will avoid a reading that produces absurd results because we ??will not ? presume [ ] that the legislature intended absurd results.?? Id. (quoting State v. Delgado, 148 Wn.2d 723, 733, 63 P.3d 792 (2003) (Madsen, J., dissenting)).

[*107] B. Community Placement

[7-10] ¶18 RCW 9.94A.030(7) 13 defines ?community placement? as the

period during which the offender is subject to the conditions of community custody and/or postrelease supervision, which begins either upon completion of the term [***11] of confinement (postrelease supervision) or at such time as the offender is transferred to community custody in lieu of earned release. Community placement may consist of entirely community custody, entirely postrelease supervision, or a combination of the two.

(Emphasis added.) RCW 9.94A.030(7) provides that community placement begins ?either upon completion of the term of confinement (postrelease supervision) or at such time as the offender is transferred to community custody in lieu of earned release.? (Emphasis added). ?Community custody? is the ?portion of an offender's sentence of confinement in lieu of earned release time ? served in the community subject to controls placed on the offender's movement and activities by the department.? RCW 9.94A.030(5) (emphasis added). 14

FOOTNOTES

13 When Donaghe committed his offenses in 1989, this language was codified as former RCW 9.94A.030(4) (1989). Because the material language remains the same, we refer to the current version of the statute, now codified as RCW 9.94A.030(7).

14 When Donaghe committed his offenses in 1989, this language was codified as former RCW 9.94A.030(3) (1989). Because the material language remains the same, we refer to the [***12] current version of the statute, codified as RCW 9.94A.030(5).


¶19 Reading RCW 9.94A.030(5) and (7) together persuades us that community placement must be served ?in the community.? The legislature has provided that community placement begins either (1) when the offender is transferred to ?community custody,? which RCW 9.94A.030(5) explicitly states must be served ?in the community?; or (2) ?upon completion of the term of confinement,? which the parenthetical ?postrelease supervision? [*108] modifies. 15 RCW 9.94A.030(7) (emphasis added). The prefix ?post-? means ?after,? ?subsequent,? or ?later.? Webster's Third New International Dictionary 1771 (2002). The ?postrelease supervision? parenthetical makes it clear that ?completion of the term of confinement? refers to actual release into the community, as opposed to the end of the offender's sentence. Thus, under the plain, unambiguous language of RCW 9.94A.030(7), community placement [**238] cannot begin until after the State releases an offender into the community.

FOOTNOTES

15 Currently, RCW 9.94A.030(38) defines ?postrelease supervision? as ?that portion of an offender's community placement that is not community custody.? That provision [***13] was not in effect at the time Donaghe committed these rapes.


¶20 Accordingly, Donaghe's community placement cannot begin until the State releases him from confinement to supervision in the community. This has not yet happened because, instead of releasing Donaghe from confinement at the end of the prison term portion of his rape sentences, the State transferred him to confinement at the SCC. We hold, therefore, that Donaghe has not begun, and thus not fulfilled, the one-year community placement portion of his sentences for two counts of rape.

C. In re Knippling

¶21 Donaghe argues that Division Three's decision in In re Personal Restraint of Knippling, 144 Wn. App. 639, 183 P.3d 365 (2008), demonstrates that his community custody began to run when he was transferred to SCC. Knippling is not binding on us; nor do we find the majority's reasoning persuasive. 16 Instead, we find Judge Sweeney's reasoning compelling and adopt his dissent?that community custody must be served in the community. 17 Id. at 644 (Sweeney, J., dissenting).

FOOTNOTES

16 We also recently declined to follow the Knippling majority in State v. Jones, 151 Wn. App. 186, 194, 210 P.3d 1068 (2009).

17 We note that the trial court [***14] here sentenced Donaghe to ?community placement,? not ?community custody.? Nevertheless, we find Judge Sweeney's Knippling dissent persuasive.


[*109] ¶22 In Knippling, Division Three of our court upheld Knippling's convictions but remanded for resentencing consistent with Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004). Knippling, 144 Wn. App. at 641. 18 On remand, the trial court sentenced Knippling to concurrent standard-range sentences, the longest of which was 17 months confinement. Id. Since he had already served 41 months of his original exceptional sentence, Knippling was released immediately into community custody. Id.

FOOTNOTES

18 Knippling contains no further facts about how or why Knippling was resentenced consistent with Blakely.


¶23 Knippling appealed again, this time arguing that he should have received credit against his 18 to 36 months of community custody for the extra 24 months he was incarcerated beyond his standard range sentence. Id. at 641-42. The Division Three majority agreed. It relied on former RCW 9.94A.715(1) (2006), 19 which provided in part that ? ?community custody [shall] begin[ ]: (a) [u]pon completion of the term of confinement; [or] (b) at such time as the offender [***15] is transferred to community custody in lieu of earned release.? ? Id. at 642 (emphasis added) (some alterations in original). Focusing on the legislature's use of ?completion of confinement? rather than ?release,? the majority reasoned that ?[t]he ordinary meaning of ?completion? is different from the ordinary meaning of ?release? because an offender can complete a term of confinement without being released.? 20 Id. at 642 n.3. The majority then concluded that, because Knippling had ?completed his term of [*110] confinement? 24 months before his release from prison, his community custody began to run 24 months before he was released. Id. at 642.

FOOTNOTES

19 The legislature enacted the language in this provision in 2000. Thus, this statute would not govern Donaghe's case even if we found the Knippling majority analysis compelling. Laws of 2000, ch. 28, § 25. But, the pertinent language in former RCW 9.94A.715(1) is almost identical to RCW 9.94A.030(7)'s definition of ?community placement.?

20 We agree with the Knippling majority that ?an offender can complete a term of confinement without being released.? Knippling, 144 Wn. App. at 642 n.3. For example, an offender may complete the confinement portion of his sentence for one crime, but he may remain [***16] in confinement by virtue of holds placed on him for other crimes or other matters, such as SVP commitment proceedings. In our view, however, it does not follow that an offender's completion of the confinement term of his sentence necessarily coincides with beginning a term of community custody or placement, for which actual release into the community is necessary.


¶24 Judge Sweeney dissented, concluding that Knippling's ?term of community custody began only when the State released him from confinement into the community.? Id. at 643-44 (Sweeney, J., dissenting). [**239] In reaching this conclusion, Judge Sweeney cited RCW 9.94A.030(5)'s definition of ?community custody?:

? ?[C]ommunity custody? means that portion of an offender's sentence ? served in the community subject to controls placed on the offender's movement and activities by the department.?

Id. at 643 (some emphasis added) (second alteration in original) (quoting RCW 9.94A.030(5)). In ignoring this language, the Knippling majority departs from a well-settled rule of statutory construction?to give effect to all language and to render no portion meaningless. 21 See also our recent decision in Jones, 151 Wn. App. at 192 (?The Knippling court's conclusion that an offender's community custody [***17] term may begin before the offender is released into the community conflicts with the statute's definition of ?community custody.? ?).

FOOTNOTES

21 J.P., 149 Wn.2d at 450 (quoting Davis, 137 Wn.2d at 963).


¶25 We agree with Judge Sweeney that (1) ?[t]he term community custody clearly contemplates time spent in the community?; and (2) the legislature intended ?continued control for a period of time after a defendant is released.? Knippling, 144 Wn. App. at 643 (Sweeney, J., dissenting). Further, in our view, this reasoning applies equally to community placement: The statutory scheme clearly contemplates that a term of ?community placement? will be served in the community, under continued DOC control, in [*111] order to ensure the offender's smooth and safe transition back into the community. 22

FOOTNOTES

22 Because we hold that Donaghe's community placement term have not yet begun, we do not reach his argument that the trial court lacked authority to determine tolling.


II. Certificate of Discharge Requirements

[11] ¶26 Donaghe argues that the DOC letter constitutes notice from the DOC that he has completed all requirements of his sentence. 23 Again, we disagree.

FOOTNOTES

23 Donaghe also argues, without citation, that the DOC letter meets the [***18] requirements for discharge under RCW 9.94A.637(1)(c) and that RCW 9.94A.637(1)(c) is remedial. Reply Br. of Appellant at 13-14. RAP 10.3(a)(6) requires citation to legal authorities. We do not review issues inadequately briefed or mentioned in passing. State v. Thomas, 150 Wn.2d 821, 868-69, 83 P.3d 970 (2004) (citing State v. Johnson, 119 Wn.2d 167, 171, 829 P.2d 1082 (1992)).


¶27 An offender is not entitled to a certificate of discharge until he has completed the requirements of his sentence and DOC has notified the sentencing court of the offender's completion of his sentence. RCW 9.94A.637(1)(a). 24 Donaghe fails to meet the requirements for issuance of a certificate of discharge because he has not completed the requirements of his sentence. Further, the DOC letter stated that he had been on supervision with DOC until DOC ?terminated? his cases, not that Donaghe had completed the requirements of his rape sentences. Disagreeing with Donaghe, we do not read this vague DOC letter language to mean that Donaghe has fulfilled his community placement requirement so as to trigger discharge, RCW 9.94A.637(1), especially because Donaghe has not yet been released into the community or served any [***19] portion of his community placement sentence. We therefore [*112] hold that the trial court did not err by refusing to issue a certificate of discharge.

FOOTNOTES

24 The legislature has recodified the discharge statute since Donaghe committed his crimes in 1989. The pertinent portion of the applicable 1989 discharge statute, former RCW 9.94A.220 (1984), provided:

When an offender has completed the requirements of the sentence, the secretary of the department or his designee shall notify the sentencing court, which shall discharge the offender and provide the offender with a certificate of discharge.

(Emphasis added.) The material language remains the same, however, so we refer to the current version, RCW 9.94A.637(1)(a).


III. Refusal To Issue Discharge Certificate Does Not Render Civil SVP Commitment Unconstitutional

[12-14] ¶28 Finally, Donaghe argues that if he is unable to complete his community placement and to obtain a discharge while confined at the SCC, then the sexually violent [**240] predator civil commitment procedure punitively and unconstitutionally disenfranchises him and other SCC residents, possibly for the rest of their lives.

¶29 The State counters that the article VI, section 3 of the Washington Constitution specifically [***20] disenfranchises convicted felons. 25 The State argues that Donaghe's disenfranchisement arises from his failure to complete his felony sentence, not from his SVP commitment at the SCC. We agree with the State.

FOOTNOTES

25 ?All persons convicted of infamous crime unless restored to their civil rights and all persons while they are judicially declared mentally incompetent are excluded from the elective franchise.? Const. art. VI, § 3.


¶30 Donaghe's disenfranchisement arises from his commission of a felony, not from his civil commitment as an SVP. 26 As a convicted felon, Donaghe possesses no fundamental right to vote until he fulfills the requirements for discharge, thus restoring his civil rights. See RCW 9.94A.637(4); Madison v. State, 161 Wn.2d 85, 100-01, 163 P.3d 757 (2007). As our Supreme Court has noted, ?[A] state may permanently disenfranchise a felon without violating his or her constitutional rights.? Madison, 161 Wn.2d at 106. Because Donaghe has not completed the community placement portion of his sentence, he is not eligible for a [*113] discharge under RCW 9.94A.637(1). 27 Therefore, the trial court's refusal to issue a certificate of discharge does not unconstitutionally disenfranchise him.

FOOTNOTES

26 We note that our [***21] SVP civil commitment procedure and similar ones have withstood various constitutional challenges. See, e.g., Kansas v. Hendricks, 521 U.S. 346, 117 S. Ct. 2072, 138 L. Ed. 2d 501 (1997); In re Det. of Stout, 159 Wn.2d 357, 150 P.3d 86 (2007); In re Det. of Petersen, 138 Wn.2d 70, 980 P.2d 1204 (1999).

27 Furthermore, it is for the legislature, not the courts, to change the discharge requirements under RCW 9.94A.637(1) if it wishes to allow SVP's to receive some sort of community placement credit while confined at the SCC, even though they have not yet been released into the community. Although we take judicial notice that our legislature has recently made it easier for felons to restore their voting rights provisionally, a convicted offender is not eligible for provisional restoration of his voting rights if he is under DOC authority, including where he is still subject to community custody. Laws of 2009, ch. 325, §§ 1, 5.

In spite of the governor's having signed this bill and its becoming effective July 27, 2009, during the pendency of this appeal, Donaghe, if eligible, should petition to restore his voting rights under the new law, which is not before us in this appeal.


¶31 We affirm.

Bridgewater[***22] , J., concurs.

DISSENT


¶32 Armstrong, J. (dissenting) ? Donaghe's continuing disenfranchisement while confined as a sexually violent predator at the Special Commitment Center (SCC) is patently unfair and unlawful. I respectfully dissent.

¶33 The majority reasons that Donaghe's disenfranchisement arises from his failure to complete his felony sentence and not from his commitment at the SCC. I disagree. Although the reason for Donaghe's initial disenfranchisement was his felony conviction, the sole reason for his continuing disenfranchisement is his SCC commitment. Donaghe would have regained his voting rights long ago had it not been for his confinement as a sexually violent predator.

¶34 Donaghe's civil commitment therefore perpetuates a sentence condition that does not serve its purposes. SCC commitments are civil in nature. In re Det. of Petersen, 138 Wn.2d 70, 78, 980 P.2d 1204 (1999). ?[T]he goals of civil and criminal confinement are quite different; the former is concerned with incapacitation and treatment, while the latter is directed to retribution and deterrence.? In re Pers. [*114] Restraint of Young, 122 Wn.2d 1, 21, 857 P.2d 989 (1993). Disenfranchisement has a punitive [***23] purpose. See State v. Schmidt, 143 Wn.2d 658, 683, 23 P.3d 462 (2001) (Johnson, J., dissenting) (loss of liberty, property, the right to vote, and the right to possess a firearm collectively encompass the punishment the State imposes on a convicted felon). The civil commitment goals of incapacitation and treatment are intended to be distinct from punishment; disenfranchisement does nothing but continue to punish a sexually violent predator. See Young, 122 Wn.2d at 21-22 (civil commitment goals are distinct from [**241] punishment and have been so regarded historically).

¶35 Furthermore, SCC commitments are of indefinite duration, persisting until the person no longer meets the definition of a ?sexually violent predator? or until conditional release to a less restrictive alternative is appropriate. RCW 71.09.060(1). Unconditional discharge is a rarity among SCC residents. Jonathan Martin, Violent Predator's Freedom Would be a First, Seattle Times, Jan. 9, 2008. More likely is conditional release to a less restrictive alternative, which requires a preliminary court finding that the person is willing to comply with supervision requirements imposed by the Department of Corrections (DOC). RCW 71.09.092.

¶36 Donaghe's [***24] continuing disenfranchisement is inconsistent with the goals of his current commitment. Furthermore, that disenfranchisement is of indefinite duration, as there is no way of knowing when or if Donaghe will be released from the SCC. If he is released to a less restrictive alternative, Donaghe will be subject to DOC supervision under conditions far more stringent than any imposed as part of his one-year term of community placement. See Martin, supra (upon release to a less restrictive alternative, former SCC resident had to comply with 48 conditions); RCW 71.09.092. And, because such release would be of indefinite duration as well, Donaghe may never be in a position to fulfill his one year of community placement obligation and regain the right to vote.

[*115] ¶37 The legislature has addressed this untenable situation in its recent amendments to RCW 29A.08.520. Laws of 2009, ch. 325, § 1. These amendments provisionally restore the right to vote to persons who have not fully satisfied their felony sentences as long as they are not under DOC authority. RCW 29A.08.520(1). Under the revised statute, a person is under DOC authority if he is serving a sentence of confinement in DOC [***25] custody or is subject to community custody as defined in RCW 9.94A.030. RCW 29A.08.520(7).

¶38 Donaghe is not currently under DOC authority or subject to community custody. See RCW 71.09.060(1) (SCC residents are in the custody of the Department of Social and Health Services). Consequently, Donaghe should be entitled to vote at least as of the effective date of the 2009 amendments to RCW 29A.08.520.