[No. 83738-4. En Banc.]
Argued October 19, 2010. Decided June 30, 2011
Dana M. Lind (of Nielsen, Broman & Koch PLLC), for petitioner.
Jon Tunheim, Prosecuting Attorney, for respondent.
AUTHOR: Justice Mary E. Fairhurst.
We concur: Justice Charles W. Johnson, Justice Tom Chambers, Justice Susan Owens, Justice James M. Johnson.
AUTHOR: Justice Debra L. Stephens.
We concur: Chief Justice Barbara A. Madsen, Justice Gerry L. Alexander, Richard B. Sanders, Justice Pro Tem. EN BANC [As amended by order of the Supreme Court September 15, 2011.] ¶1 FAIRHURST, J. -- Samuel W. Donaghe was convicted of second degree rape. He seeks restoration of his voting rights and petitions this court for review of the Court of Appeals decision affirming the trial court's denial of his motion for a certificate of discharge. Donaghe argues that (1) the trial court lacked the authority to deny his motion for a certificate of discharge, (2) the community placement portion of his sentence should not have tolled during his precommitment confinement and civil confinement as a sexually violent predator (SVP) at the Special Commitment Center (SCC), and (3) the tolling of his community placement sentence results in his unconstitutional disenfranchisement. We affirm the Court of Appeals. I. FACTS ¶2 The State charged Donaghe with six counts of second degree rape of AT, a foreign exchange student living with Donaghe. Donaghe entered an Alford ¶3 On May 10, 1995, the day Donaghe's incarceration was to end, the State filed a petition to confine Donaghe as an SVP under RCW 71.09.010. ¶4 On March 31, 2000, while awaiting his SVP commitment trial, Donaghe moved for a certificate of discharge for his rape convictions. ¶5 Three and a half years later, in September 2003, the court found that Donaghe was an SVP. The Court of Appeals affirmed in an unpublished opinion on August 3, 2005. ¶6 On November 2, 2007, the trial court heard Donaghe's renewed motion for a certificate of discharge but adhered to its May 19, 2000 ruling, stating that "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." Verbatim Report of Proceedings (VRP) (Nov. 2, 2007) at 6-7. At the conclusion of this hearing, Donaghe asserted that he had a letter from the Department of Corrections (DOC) (hereinafter DOC letter) "terminating my community corrections some time ago." Id. at 7. The trial court stated that if Donaghe could produce the DOC letter, its previous rulings "may need to be reconsidered." Id. ¶7 Donaghe filed a motion for reconsideration, attaching the DOC letter, dated January 23, 2006 and written by DOC Correctional Records Specialist Virginia Shamberg. The DOC letter stated: Dear Mr. Donaghe: This letter is in response to your request for conviction information and the dates of incarcerations 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 # 901001516) on 10/30/91 for Rape 3 and sentenced to a maximum term of 1 year & 5 months[.] Mr[.] Donaghe was received at Washington Corrections Center on 6/8/94 and released on 4/25/96[.] 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[.] Clerk's Papers (CP) at 41. The trial court reheard Donaghe's motion for certificate of discharge. Donaghe argued the DOC letter constituted notification that he had completed the terms of his sentence and, thus, former RCW 9.94A.220 (1984) ¶8 In a split decision, the Court of Appeals affirmed and made three holdings. State v. Donaghe, 152 Wn. App. 97, 105-08, 111-13, 215 P.3d 232 (2009). First, the Court of Appeals held the DOC letter was vague, did not constitute notice to the court and, because Donaghe still had to complete community placement, he had not completed all requirements of his sentence. Id. at 111-12. Second, the Court of Appeals, relying on the plain language of former RCW 9.94A.030(3) and (4) (1989), held that because Donaghe was confined at SCC, his term of community placement could not "begin" until the State released Donaghe from confinement to the supervision of the community and, therefore, his sentence was incomplete and he was not entitled to a certificate of discharge. Donaghe, 152 Wn. App. at 108. ¶9 Donaghe appealed, and this court granted review. State v. Donaghe, 168 Wn.2d 1010, 227 P.3d 853 (2010). II. ISSUES ¶10 A. Given the DOC letter, did the trial court have the authority to deny Donaghe's motion for a certificate of discharge? ¶11 B. Under the SRA, did Donaghe's term of community placement toll during his confinement at the SCC as an SVP? ¶12 C. Does the tolling of Donaghe's community placement sentence result in his unconstitutional disenfranchisement? III. ANALYSIS ¶13 The Court of Appeals correctly affirmed the denial of the motion for certificate of discharge. The trial court had the authority to deny the certificate of discharge, the denial was required under the tolling provision of former RCW 9.94A.170(3), and the denial did not result in Donaghe's unconstitutional disenfranchisement. [1, 2] ¶14 This case requires interpretation of multiple provisions of the SRA. Interpretation of the SRA is a question of law that we review de novo. State v. Keller, 143 Wn.2d 267, 276, 19 P.3d 1030 (2001). When interpreting a statute, "the court's objective is to determine the legislature's intent." State v. Jacobs, 154 Wn.2d 596, 600, 115 P.3d 281 (2005). If the meaning of a statute is plain on its face, we "'give effect to that plain meaning.'" Id. (quoting Dep't of Ecology v. Campbell & Gwinn, LLC, 146 Wn.2d 1, 9, 43 P.3d 4 (2002)). To determine the plain meaning, we look to the text of the statute, as well as "the context of the statute in which that provision is found, related provisions, and the statutory scheme as a whole." Id. An undefined term is "given its plain and ordinary meaning unless a contrary legislative intent is indicated." Ravenscroft v. Wash. Water Power Co., 136 Wn.2d 911, 920-21, 969 P.2d 75 (1998). If after this inquiry the statute is susceptible to more than one reasonable interpretation, it is ambiguous and we "may resort to statutory construction, legislative history, and relevant case law for assistance in discerning legislative intent." Christensen v. Ellsworth, 162 Wn.2d 365, 373, 173 P.3d 228 (2007). A. Authority of the trial court [3, 4] ¶15 Donaghe argues that the DOC letter demonstrates that DOC considered the terms of Donaghe's sentence to have been completed; therefore, under former RCW 9.94A.220, the court had no discretion but to issue the certificate of discharge. Former RCW 9.94A.220 provides in pertinent part: 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. The discharge shall have the effect of restoring all civil rights lost by operation of law upon conviction, and the certificate of discharge shall so state. ¶16 The DOC letter does not satisfy former RCW 9.94A.220 for several reasons. First, the DOC letter was not official notice to the sentencing court that Donaghe had completed his term of confinement. The DOC letter was not sent to the sentencing court, but to Donaghe in response to his request for conviction information. Second, the DOC letter merely states that DOC's supervision was terminated, not that the requirements of Donaghe's sentence had been completed. (c) When an offender who is subject to requirements of the sentence in addition to the payment of legal financial obligations either is not subject to supervision by the department or does not complete the requirements while under supervision of the department, it is the offender's responsibility to provide the court with verification of the completion of the sentence conditions other than the payment of legal financial obligations. When the offender satisfies all legal financial obligations under the sentence, the county clerk shall notify the sentencing court that the legal financial obligations have been satisfied. When the court has received both notification from the clerk and adequate verification from the offender that the sentence requirements have been completed, the court shall discharge the offender and provide the offender with a certificate of discharge by issuing the certificate to the offender in person or by mailing the certificate to the offender's last known address. (Emphasis added.) This provision provides the process an offender must complete to receive discharge when DOC has terminated supervision before the offender completes the sentence requirements. This is precisely the situation presented by the facts of this case. Donaghe also argues, without citation, that the DOC letter meets the 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)). Donaghe, 152 Wn. App. at 111 n.23. In his supplemental brief to the court, Donaghe mentions in a footnote that the Court of Appeals declined to reach whether presentation of the DOC letter satisfies RCW 9.94A.637(1)(c); however, he does not take the opportunity to brief the issue more thoroughly. Suppl. Br. of Pet'r. at 10 n.8. Because of the failure to adequately brief this issue, we decline to address this issue as well. Moreover, even if the issue were reached, it is not likely to change our analysis because the DOC letter does not establish that Donaghe completed the requirements of his sentence, nor could it under former RCW 9.94A.170. B. Tolling a term of community placement ¶17 Donaghe argues that his sentence of community placement should have run concurrently with his confinement at the SCC. This issue requires us to determine both when a period of community placement begins and when that period of community placement tolls. The Court of Appeals held that community placement can only begin "in the community;" therefore Donaghe's community placement never began because he was confined at the SCC after incarceration. Donaghe, 152 Wn. App. at 107. The Court of Appeals noted that "[t]he prefix 'post-' means 'after,' 'subsequent,' or 'later,'" id. at 108 (quoting WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 1771 (2002)), and concluded postrelease supervision refers to actual release into the community, as opposed to the date representing the conclusion of the offender's term of confinement. Id. The Court of Appeals did not reach the issue of whether confinement at the SCC tolled Donaghe's sentence of community custody. Id. at 110-11. [5] ¶18 The plain language of the SRA contradicts the Court of Appeals' statutory interpretation. The SRA, in 1989, defined "'[c]ommunity placement'" as a one-year 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 of confinement (postrelease supervision) or at such time as the offender is transferred to community custody in lieu of early release. Community placement may consist of entirely community custody, entirely postrelease supervision, or a combination of the two. Former RCW 9.94A.030(4). Accordingly, community custody and postrelease supervision are two potential forms of community placement. The legislature defined "'[c]ommunity custody'" as "that portion of an inmate's sentence of confinement in lieu of early release time served in the community subject to controls placed on the inmate's movement and activities by the department of corrections." Former RCW 9.94A.030(3). While "'[p]ostrelease supervision'" is defined as "that portion of an offender's community placement that is not community custody." Former RCW 9.94A.030(21). Former RCW 9.94A.030(4) expressly states that community custody begins when "the offender is transferred to community custody in lieu of early release." Donaghe's time at the SCC was not "in lieu of early release." Moreover, former RCW 9.94A.030(3) limits the meaning of "'[c]ommunity custody'" to that portion of an inmate's sentence that is "served in the community." Donaghe was not in the community. Therefore, Donaghe's position is that his community placement sentence was in the form of postrelease supervision, which is merely defined as "not community custody" and, under former RCW 9.94A.030(4), "begins . . . upon completion of the term of confinement." Donaghe argues that his postrelease supervision began at the conclusion of his incarceration and transfer to the SCC. ¶19 We agree with Donaghe and disagree with this portion of the Court of Appeals' analysis. Under the plain language of former RCW 9.94A.030(4) and (21), community placement in the form of postrelease supervision begins simply upon completion of the term of confinement. Release may be from incarceration to the SCC. Because Donaghe was transferred to the SCC at the completion of his term of incarceration, he was "released" and his term of postrelease supervision could statutorily begin. However, once it begins, it can also toll. [6] ¶20 In 1989, the SRA provided for the tolling of sentences of confinement or supervision (including community placement sentences) as follows: 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 [former] RCW 9.94A.207 [(1999)] Former RCW 9.94A.170(3) (emphasis added). This provision, subject to two exceptions not applicable here, provides for the tolling of a supervision sentence (including postrelease supervision) while an "offender is in confinement for any reason." Id. "'Confinement'" is defined as "total or partial confinement." Former RCW 9.94A.030(7). "'Total confinement'" is defined as "confinement inside the physical boundaries of a facility or institution operated or utilized under contract by the state or any other unit of government for twenty-four hours a day, or pursuant to [former] RCW 72.64.050 [(1979)] and 72.64.060.? Former RCW 9.94A.030(27). confinement 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 has been ordered by the court, in the residence of either the defendant or a member of the defendant's immediate family, for a substantial portion of each day with the balance of the day spent in the community. Partial confinement includes work release and home detention. Former RCW 9.94A.030(20). ¶21 When a prosecuting attorney or the attorney general files a petition alleging that a person is an SVP, and the judge makes a determination that probable cause exists, the "judge shall direct that the person be taken into custody." RCW 71.09.040(1). Within 72 hours, a probable cause hearing is held, at which time the person can contest the probable cause finding. RCW 71.09.040(2). Until the probable cause hearing is complete, the person "may be held in total confinement at the county jail until the trial court renders a decision." Id. (emphasis added). If the court determines that there is in fact probable cause that the person is an SVP, the legislature has explicitly provided that "[i]n no event shall the person be released from confinement prior to trial." RCW 71.09.040(4). During the SVP trial, the person is to be "detained in a secure facility." RCW 71.09.060(1). Even if a retrial is required, the person may not be "released from confinement prior to retrial or dismissal of the case." Id. Thus, Donaghe's precommitment confinement clearly falls within the definition of "total confinement" as he was held in custody in a state facility for 24 hours a day during the pendency of his SVP proceeding. ¶22 After the court held that Donaghe was an SVP, he was civilly committed to the SCC. As provided in RCW 71.09.060(1), civil commitment involves potentially permanent confinement of the SVP: If the court or jury determines that the person is a sexually violent predator, the person shall be committed to the custody of the department of social and health services for placement in a secure facility operated by the department of social and health services for control, care, and treatment until such time as: (a) The person's condition has so changed that the person no longer meets the definition of a sexually violent predator; or (b) conditional release to a less restrictive alternative as set forth in RCW 71.09.092 is in the best interest of the person and conditions can be imposed that would adequately protect the community. Moreover, under the SVP act, chapter 71.09 RCW, a "'[t]otal confinement facility'" is defined as including the SCC where Donaghe is currently confined: "'Total confinement facility' means a secure facility that provides supervision and sex offender treatment services in a total confinement setting. Total confinement facilities include the special commitment center and any similar facility designated as a total confinement facility by the secretary." RCW 71.09.020(19) (emphasis added). Donaghe's confinement at the SCC falls within the plain and unambiguous statutory definition of "'[t]otal confinement'" under former RCW 9.94A.030(27). Thus, under former RCW 9.94A.030(7), Donaghe was in confinement while civilly committed as an SVP at the SCC. ¶23 The reason for Donaghe's confinement was his precommitment civil detention and subsequent civil commitment to the SCC as an SVP. This falls within "any reason." Former RCW 9.94A.170(3). While Donaghe's sentence of community placement began upon release from incarceration, it immediately tolled because of his confinement at the SCC. The trial court properly denied his motion for a certificate of discharge. C. Disenfranchisement ¶24 Donaghe argues that if he is unable to obtain a certificate of discharge while confined at the SCC, then his civil commitment procedure punitively and unconstitutionally disenfranchises him and other SCC residents, possibly for the rest of their lives. The State responds that Donaghe's disenfranchisement arises from his felony conviction, not his civil commitment. The Court of Appeals agreed with the State, and so do we. [7] ¶25 Article VI, section 3 of the Washington Constitution specifically disenfranchises convicted felons: "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." [8-11] ¶26 Convicted felons remain without their civil rights, including the right to vote, until issued a certificate of discharge upon completion of the requirements of their sentence. Former RCW 9.94A.220. In Madison v. State, 161 Wn.2d 85, 110, 163 P.3d 757 (2007), we upheld the disenfranchisement of felons who have satisfied the terms of their sentences, except for paying legal financial obligations. As this court noted, "[A] state may permanently disenfranchise a felon without violating his or her constitutional rights." Id. at 106. Similar to felons who remain (potentially permanently) unable to pay legal financial obligations, felons who fail to serve their terms of community placement because of civil commitments have not been unconstitutionally disenfranchised by the failure to complete their sentence. A felon's disenfranchisement arises from the commission of a felony, not from his civil commitment. Until Donaghe fulfills the requirements of his sentence, he is not eligible for discharge under former RCW 9.94A.220. The trial court's denial of his motion for a certificate of discharge did not result in his unconstitutional disenfranchisement. IV. CONCLUSION ¶27 We affirm the Court of Appeals. The trial court had the authority to deny Donaghe's motion for a certificate of discharge. Under the SRA, the denial of the certificate of discharge was proper because Donaghe's period of community placement was tolled by his confinement as an SVP at the SCC. The denial of Donaghe's certificate of discharge did not result in his unconstitutional disenfranchisement. C. JOHNSON, CHAMBERS, OWENS, and J.M. JOHNSON, JJ., concur.Debra L. Stephens ¶28 STEPHENS, J. (dissenting) -- I agree with the majority that Samuel Donaghe's term of community placement began upon completion of his term of confinement. I disagree, however, that Donaghe's detention under a civil commitment scheme triggered the tolling provision under the Sentencing Reform Act of 1981 (SRA), chapter 9.94A RCW. ¶29 At the time of Donaghe's offense, the SRA's tolling provision stated that "[a]ny period of supervision shall be tolled during any period of time the offender is in confinement for any reason." Former RCW 9.94A.170(3) (1988). The majority says that Donaghe's precommitment detention at the special commitment center was "confinement for any reason" that tolled his term of community placement. ¶30 The term "confinement for any reason" must be read in the context of the criminal scheme in which it appears. The tolling statute and the definition of "confinement" are contained in chapter 9.94A RCW and apply to provisions of the SRA, not an unrelated civil commitment scheme. There is no indication the legislature intended even its most broadly worded definitions under the SRA to sweep outside the criminal context. If we were to extend these SRA concepts beyond the criminal sphere, then why stop at the sexually violent predator statute, chapter 71.09 RCW? Why not encompass any mental health detention? Why not include voluntary inpatient treatment at a clinic that contracts with the State? The majority's statutory analysis offers no principled basis to distinguish between offenders like Donaghe and any other civilly confined individual. ¶31 Because Donaghe served out his term of community placement upon completion of his sentence, notwithstanding his precommitment civil detention, I would grant his motion for a certificate of discharge. ¶32 I respectfully dissent. MADSEN, C.J., ALEXANDER, J., and SANDERS, J. PRO TEM., concur with STEPHENS, J. After modification, further reconsideration denied September 16, 2011.