[No. 79841-9. En Banc.]
Argued October 18, 2007. Decided January 17, 2008.
In the Matter of the Personal Restraint of AMEL W. DALLUGE, Petitioner.
[1] Personal Restraint — Prejudice — Necessity — First Opportunity for Review — In General. A personal restraint petitioner for whom direct review is unavailable may obtain relief by satisfying the requirements of RAP 16.4 (i.e., by showing a restraint and that the restraint is unlawful).
[2] Statutes — Construction — Review — Standard of Review. Questions of statutory interpretation are reviewed de novo.
[3] Statutes — Construction — Legislative Intent — In General. A court's goal in interpreting a statute is to determine the intent of the legislature.
[4] Criminal Law — Punishment — Sentence — Conditions — Community Placement — Community Custody — Incarceration — Effect. RCW 9.94A.625(3), which tolls a criminal offender's period of community custody during any period of time that the offender is in confinement for any reason, does not also toll the Department of Corrections' power and responsibility under RCW 9.94A.720(1)(a) to supervise the offender and to enforce conditions of community custody while the offender is in confinement.
[5] Appeal — Decisions Reviewable — Moot Questions — Test. An appellate court may decide a moot case to resolve an issue of continuing and substantial public interest if guidance would be helpful to public officers and the issue is likely to recur.
[6] Appeal — Review — Issues Unsupported by Argument or Citation to Record. An appellate court may decline to consider an issue unsupported by argument or citation to the relevant portions of the record.
SANDERS, J., ALEXANDER, C.J., and MADSEN, J., dissent by separate opinion; STEPHENS, J. did not participate in the disposition of this case.
Nature of Action: A convicted offender who was disciplined by the Department of Corrections for violating the "obey all laws" condition of his community custody for conduct occurring while he was in jail sought relief from personal restraint on claims that the department singled him out in violation of his equal protection rights, that the notice of violation did not specify the community custody condition he was alleged to have violated, and that the department lacked the power to discipline him for violating conditions of his community custody while he was in jail.
Court of Appeals: The court dismissed the petition by an order dated February 21, 2007.
Supreme Court: Holding that the statutory tolling of the offender's period of community custody while he was in jail did not also toll the department's authority to discipline him for violating the conditions of his community custody, the court affirms the order dismissing the petition.
David L. Donnan- and Gregory C. Link- (of Washington Appellate Project), for petitioner.
Robert M. McKenna-, Attorney General, and Donna H. Mullen- and John J. Samson-, Deputy, for respondent.
En Banc
¶1 CHAMBERS, J. — Criminal sentences often include a period of community custody. By design, the whole "period" of community custody must be served in the community. With an exception that is not relevant to us today, any time an offender spends in jail does not count toward serving a community custody sentence. In the language of the statute, the "period" is "tolled." RCW 9.94A.625(3).
¶2 Amel Dalluge was serving a year of community custody when he was arrested and taken to jail where there was an altercation. The Department of Corrections found this altercation violated the terms of Dalluge's community custody and, after a hearing, sanctioned him. Dalluge argues that, since his "period" of community custody was tolled at the time of the altercation, the department's power to discipline him must also have been tolled. We disagree and hold that the department had the statutory power to sanction Dalluge for his jailhouse misconduct.
FACTS
¶3 Dalluge is no stranger to this court. See, e.g., In re Pers. Restraint of Dalluge, 152 Wn.2d 772, 100 P.3d 279 (2004). We recently considered whether he was properly declined from juvenile court into adult court on two rape charges. Id. at 776. Not long after our opinion was published, Dalluge was released from prison to community custody. Community custody has not gone smoothly for him. In 2005, Dalluge was taken to the Grant County jail where, it appears, he threatened officers with pieces of a broken telephone. Based on what happened that day, Dalluge was convicted on assault, malicious mischief, and weapons charges.
¶4 Not satisfied with the criminal convictions for Dalluge's jailhouse misconduct, the department also sought to discipline him for violating the "obey all laws" condition of his community custody. The hearing officer, Kimberly Allen, found Dalluge "guilty" of two counts of violating the conditions of community custody (malicious mischief and assault on a law enforcement officer) and sanctioned him with 60 days' total confinement, beginning February 28, 2006. See RCW 9.94A.737(1) (authorizing the department to confine offenders who violate custody terms). The department asserts (without contradiction from Dalluge) that he served those 60 days concurrently with time he spent in pretrial confinement on other charges.
¶5 After an unsuccessful internal appeal, Dalluge filed this personal restraint petition, claiming that the department singled him out in violation of his equal protection rights, that the notice of violation did not specify what policy he was alleged to have violated, and that the department lacked the power to discipline him for misconduct committed while he was in jail. Chief Judge Sweeney dismissed his petition, noting:
tolling is an administrative procedure which prevents the offender from getting credit against community custody at the same time he is being held on a separate offense. Mr. Dalluge cites no authority for the proposition that tolling means the offender is not subject to the conditions of community custody. And, such an argument would lead to the absurd result that an offender who was subject to a no-contact order as a condition of his community custody, could contact his victims while he was in jail.
Order Dismissing Pers. Restraint Pet. (Feb. 21, 2007). We granted review.
Analysis
¶9 While the plain language of RCW 9.94A.030(5) and RCW 9.94A.625(3) arguably supports either party's interpretations, looking at the sentencing scheme as a whole, we agree with the department. Cf. Campbell & Gwinn, LLC, 146 Wn.2d at 11 (court may consider related statutes when divining the plain meaning of the statute). The legislature has explicitly and broadly given the department the power and responsibility to supervise offenders while on various types of community custody. RCW 9.94A.720. The Sentencing Reform Act of 1981, chapter 9.94A RCW, says nothing about the department's power and responsibility being tolled while offenders are confined and instead uses sweeping language. E.g., RCW 9.94A.720(1)(a) ("all offenders sentenced to terms involving . . . community custody shall be under the supervision of the department and shall follow explicitly the instructions and conditions of the department." (emphasis added)). It would be peculiar, to say the least, if an offender could evade the requirements of section .720(1)(a) by committing an offense that results in confinement. It also seems very unlikely to us that the legislature intended that community custody conditions, such as no contact orders, would be suspended while an offender is in jail. Cf. United States v. Camarata, 828 F.2d 974, 981 (3d Cir. 1987) (parole could be revoked before it began based on offender violation of laws); see also State v. Keller, 98 Wn.2d 725, 728, 657 P.2d 1384 (1983) (court will not read statutes in an absurd or strained way). ¶10 The department's reading is consistent with the legislature's uncodified statement of purpose: The legislature intends that all terms and conditions of an offender's supervision in the community, including the length of supervision and payment of legal financial obligations, not be curtailed by an offender's absence from supervision for any reason including confinement in any correctional institution. LAWS OF 2000, ch. 226, § 1. Based on all these statutes, we conclude that the legislature intended the department to retain supervisory power and responsibility while offenders on community supervision are confined. CONCLUSION ¶13 We conclude that the department had the statutory authority to sanction Dalluge for violating the terms of community custody while he was confined. We affirm the dismissal of his personal restraint petition. C. JOHNSON, OWENS, FAIRHURST, and J.M. JOHNSON, JJ., and BRIDGE, J. PRO TEM., concur. ¶14 SANDERS, J. (dissenting) — The majority derives a legislative intent contrary to the plain text of the statute, concluding while the period of community custody tolls, the conditions of community custody remain. Majority 6. I disagree. I would apply the statute as written, tolling both the period and the conditions of community custody. ¶15 Our goal in every statutory construction inquiry is to implement the legislature's intent as gleaned from the statute's plain language and ordinary meaning. See, e.g., State v. J.P., 149 Wn.2d 444, 450, 69 P.3d 318 (2003). When the legislature uses different words in the same statute, we presume the legislature intends those words to have different meanings. Koenig v. City of Des Moines, ¶16 Here, RCW 9.94A.625 uses two different terms in subsections (3) and (4) to describe the tolling process: "period of community custody" and "terms of . . . community custody." "Period" is not defined in the statute but is defined as a "customary or ordained length of existence." WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 1680 (2002). ¶17 Reflecting this simple wisdom, the text defines "[c]ommunity custody" as "that portion of an offender's sentence of confinement . . . served in the community subject to controls placed on the offender's movement and activities." ¶18 These provisions are about as close to a model of clarity as one can expect. Plain language requires no construction to understand its meaning and we "should assume the Legislature means exactly what it says." State v. Chapman, 140 Wn.2d 436, 450, 998 P.2d 282 (2000). See also Hangartner v. City of Seattle, 151 Wn.2d 439, 453, 90 P.3d 26 (2004) ("[W]e will not look past the clear language of th[e] statute."). Yet the majority looks past the statute's clear language and resorts to extrinsic evidence to fabricate an intent contrary to the one clearly expressed by the text. ¶19 Notwithstanding the above, the majority's departure from the literal wording of the statute to fabricate its contrary intent is unsupported by the extrinsic evidence it uses. ¶20 The majority points to RCW 9.94A.720(1)(a) and an "uncodified statement of purpose" as evincing the legislature's intent to allow conditions of community custody to continue during the tolling period. Majority at 5. RCW 9.94A.720(1)(a) states, "all offenders sentenced to terms involving . . . community custody shall be under the supervision of [DOC]." But reading further in RCW 9.94A.720(1)(d) reveals DOC's supervisory power is limited to only "prior to or during an offender's community custody term." Nothing there suggests the conditions of community custody continue during the tolling period of an offender's community custody term. ¶21 Moreover, RCW 9.94A.700(4) provides, "the terms of any community placement . . . shall include the following conditions," naming five terms of any community custody. How can a statute name terms (RCW 9.94A.700(4)) and require DOC to set the date for tolling those terms (RCW 9.94A.625(4)) but not intend those terms to toll? Only the tone deaf would find harmony in the majority's construction of this statute. See City of Seattle v. Fontanilla, 128 Wn.2d 492, 498, 909 P.2d 1294 (1996) (statutory provisions should be harmonized with related provisions). ¶22 According to the majority, an uncodified statement of purpose provides the answer. "The legislature intends that all terms and conditions of an offender's supervision in the community, including the length of supervision and payment of legal financial obligations, not be curtailed by an offender's absence from supervision for any reason including confinement in any correctional institution." Majority at 6 (emphasis omitted) (quoting LAWS OF 2000, ch. 226, § 1). Assuming this statement of purpose is relevant to our inquiry, ¶23 Permitting the conditions of community custody to continue during the tolling period subjects the offender to a longer term of custody, a result our case law warns against: "[a]s long as the confinement and the community placement do not exceed the statutory maximum sentence, there is no error." In re Pers. Restraint of Caudle, 71 Wn. App. 679, 680, 863 P.2d 570 (1993). ¶24 Ultimately, the majority believes an offender could evade his conditions of community placement by becoming incarcerated, a result the legislature could not have intended. Besides the ridiculous notion of an offender incarcerating himself to be free to violate a condition of community custody, we do not have the power to rewrite a statute "even if 'the legislature intended something else but failed to express it adequately.' " Hangartner, 151 Wn.2d at 452-53 (quoting State v. Chester, 133 Wn.2d 15, 21, 940 P.2d 1374 (1997)). The best judge of the statute's intent is the words of the statute itself rather than our intuition of what the statute intended to do. If the statute's plain language does not convey the correct intent, then the legislature can amend the statute, something it does every year. See majority at 4 n.1. ¶25 Here, Amel Dalluge was under community custody when he was incarcerated in Grant County on unrelated charges. The plain language of RCW 9.94A.625 tolls the period and the terms of community custody during incarceration. Because the majority ignores this plain language, permitting DOC to find Dalluge violated his terms of community custody while incarcerated, I dissent. ALEXANDER, C.J., and MADSEN, J., concur with SANDERS, J.