State v. Pannell
State v. Pannell
Opinion of the Court
¶1 Daniel Pannell pleaded guilty to incest and child molestation. His lengthy sentence was suspended pending satisfactory progress in sexual offender treatment,
FACTS
¶2 In 2002, Pannell’s 16-year-old daughter told her stepmother that Pannell had sexually assaulted her. Not long afterward, the State charged him with incest. The record suggests that he had repeatedly propositioned his daughter before one day telling “her to go into the bedroom and pull her pants down, which she ultimately did.” Clerk’s Papers (CP) at 2. After she refused to have intercourse with him he “performed oral sex on her.” CP at 2. After a brief investigation, the State amended the charges to add four counts of second degree child molestation of another victim. In 2003, Pannell pleaded guilty to five counts of incest and child molestation, each count carrying a maximum sentence of 120 months. RCW 9A.20.021(l)(b). Judge Katherine M. Stolz sentenced Pannell to a standard range sentence of 116 months in prison but suspended the execution of the sentence conditioned on his satisfactory progress in a SSOSA. Specifically, the judgment and sentence said:
SUSPENSION OF SENTENCE. The execution of this sentence is suspended; and the defendant is placed on community custody under the charge of DOC [Department of Corrections] for the length of the suspended sentence or three years, whichever is greater, and shall comply with all rules, regula*225 tions and requirements of DOC and shall perform affirmative acts necessary to monitor compliance with the orders of the court as required by DOC. Community custody may be extended for up to the statutory maximum term of the sentence.
CP at 41. Pannell was remanded into community custody and began outpatient sexual offender treatment.
¶3 Unfortunately, Pannell did not do well in treatment. On May 13, 2005, he was advised by the court “that he had ninety days to show marked improvement.” CP at 57. While he made some initial improvement, by that November, his treatment provider reported that he had “difficulty with boundary issues, [and] appeared to be dishonest and manipulative with his group, his sex offender treatment provider and CCO [community custody officer].” CP at 74. In May 2006, his sexual deviancy treatment counselor terminated treatment and recommended revoking Pannell’s suspended sentence. Among other things, his counselor reported that “Mr. Pannell has failed to gain an understanding of his offense dynamics or the precipitating factors that lead to his offense. He continues to blame the victim for his crimes and fails to accept responsibility for his actions.” CP at 58. The counselor also stressed that Pannell had “made no demonstrable effort to pay his [treatment] bill.” Id. The counselor concluded that “Mr. Pannell is a poor candidate for treatment and that may in fact be unamenable to treatment.” Id. After receiving reports from both Pannell’s counselor and community corrections officer, the State petitioned the court to revoke Pannell’s suspended sentence. The judge granted the petition and imposed the full 116-month sentence, plus 3 to 4 years of community placement.
¶4 In 2009, Pannell filed a CrR 7.8 motion seeking to be resentenced. Initially, he contended his judgment and sentence was “invalid on its face” because, depending on whether he accrued sufficient good time credit, he could potentially serve more than the 120-month statutory maximum for class B felonies. RCW 9A.20.021(l)(b); CP at 85. In
¶5 At the hearing on the CrR 7.8 motion, Judge Stolz concluded that community custody under a suspended SSOSA sentence was analogous to bail, and “you don’t get credit for the time that you’re out on bail.” Verbatim Report of Proceedings at 6. Judge Stolz did clarify Pannell’s judgment and sentence pursuant to Brooks, 166 Wn.2d 664, by appending an order that said:
The total time that Defendant can be under this Sentence is 120 months. This includes time spent in the Pierce County Jail; [i]n the Department of Corrections & on Community Custody post release from the Department of Corrections.
CP at 123. Unsatisfied, Pannell appealed. The Court of Appeals affirmed, and we took review. State v. Pannell, 171 Wn.2d 1009, 249 P.3d 1028 (2011).
ANALYSIS
¶6 We must decide whether the legislature intended that offenders sentenced under a SSOSA receive credit for the time they spend in the community on a suspended sentence against their maximum sentence. Pannell’s arguments rely purely on statutory interpretation. In cases of statutory interpretation, “[t]he court’s fundamental objective is to ascertain and carry out the
f 7 The legislature enacted the SSOSA system to create a sentencing alternative for certain first time sex offenders who plead guilty and are found amenable to treatment. Laws of 2000, ch. 28 § 20(2), (3); RCW 9.94A.670(2), (3).
may revoke the suspended sentence at any time during the period of community custody and order execution of the sentence if: (a) The offender violates the conditions of the suspended sentence, or (b) the court finds that the offender is failing to make satisfactory progress in treatment. All confinement time served during the period of community custody shall be credited to the offender if the suspended sentence is revoked.
RCW 9.94A.670(11);
¶9 Like an old milk stool, there are three legs to Pannell’s argument. First, when describing the conditions imposed on an offender during the suspended term of a SSOSA sentence, the legislature used the term “community custody.” The SSOSA statute allows a trial court to suspend an offender’s term of confinement and impose “[a] term of community custody equal to the length of the suspended sentence.” RCW 9.94A.670(5)(b) (emphasis added).
¶10 Second, an offender’s sentence cannot exceed the statutory maximum term for the class of crime for which the offender was convicted. RCW 9A.20.021(1).
¶11 Third, Pannell correctly points out that if the nearly three years he was on a suspended sentence before his SSOSA was revoked is added to the 116-month sentence (regardless of his postconfinement community custody), his total sentence will exceed 120 months. In his syllogistic argument, it follows then in calculating his maximum sentence, he must receive credit for the time he spent in the community while receiving treatment before his suspended sentence was revoked.
¶12 The State argues that Pannell fails to read the statutes as a whole and in their full context. It contends that when the SSOSA and maximum sentence statutes are read together with other statutes relating to community custody, it is clear that the legislature did not intend that time spent in the community on a suspended sentence that is later revoked be considered as part of time served. The State relies on the language of the statutes and on two Court of Appeals opinions, State v. Miller, 159 Wn. App. 911, 247 P.3d 457, review denied, 172 Wn.2d 1010, 259 P.3d 1109 (2011), and State v. Gartrell, 138 Wn. App. 787, 790, 158 P.3d 636 (2007), which distinguish preconfinement community custody from postconfinement community custody following a revoked suspended sentence. The State has the better argument.
¶13 The SSOSA statute itself strongly suggests that only time spent in confinement during the suspended period of a SSOSA sentence is to be considered when calculating credit toward the maximum sentence. The statute specifically states, “All confinement time served during the period of community custody shall be credited to the offender if the suspended sentence is revoked.” RCW
¶14 The Court of Appeals has reached the same conclusion in two substantially similar cases, Miller, 159 Wn. App. 911, and Gartrell, 138 Wn. App. at 790. Gartrell was given a sentence of 20 months plus 36 to 48 months of community custody, suspended under SSOSA. Eleven months later, the court revoked Gartrell’s suspended SSOSA sentence. Gartrell argued that the 11 months he spent on community custody while his sentence was suspended should be credited to his 36 to 48 months of postconfinement community custody. Gartrell, 138 Wn. App. at 788-90. He contended that community custody itself was a type of confinement under RCW 9.94A.030(5) and, therefore, he was entitled to credit. Id. at 789-90. The Court of Appeals disagreed and found that the SSOSA statute was unambiguous and that “the time a sex offender serves in community custody under a SSOSA is not credited towards community custody time ordered as part of a reinstated, standard range sentence.” Id. at 788, 791. While the Gartrell court acknowledged that under the Sentencing Reform Act of 1981, community custody was treated as confinement at certain times and for
¶15 The Court of Appeals also faced the same basic factual issue presented to us today in Miller, 159 Wn. App. 911. Miller was convicted of second degree child rape when he was 18 years old and given a 93- to 123-month sentence, suspended pursuant to SSOSA. Nine years later, after Miller completed a 36-month outpatient sex offender treatment program and continued on court supervision for many years, the trial judge vacated his SSOSA suspended sentence and imposed Miller’s original sentence.
¶16 As the Miller court noted, the legislature had different goals in creating the type of community custody a SSOSA offender was under while under a suspended sentence and the type of community custody that would follow after incarceration. Id. at 926 (quoting Laws of 1996, ch. 275, § 1). The SSOSA suspended sentence allows for treatment, backed by the significant incentive of avoiding incarceration. Id. at 927 (quoting David Boerner, Sentencing in Washington § 8.1, at 8-2 (1985)). By contrast, postconfinement community custody “ ‘protect [s] the community, support[s] crime victims, assist[s] offenders to change, and provides] important information to decision makers.’ ” Id. at 926 (quoting Laws of 1996, ch. 275, § 1). They serve different purposes, and Pannell does not persuade us that the legislature intended that they be treated the same.
¶18 Pannell seems to suggest that because he was under some conditions while in the community under a suspended sentence, he was under confinement and entitled to credit. But as the trial judge noted, an offender is not generally entitled to credit for time out on bail, nor, as
¶19 We agree with our Court of Appeals. When the legislature created SSOSA as an alternative for sex offenders amenable to treatment, it provided to the courts two tools: a carrot and a whip. The suspension of the sentence subject to treatment and other conditions is the carrot. Incarceration followed by supervised time in the community is the whip. Time spent eating the carrot and time spent under the whip are qualitatively different. The legislature did not intend that the time the offender spends nibbling at the carrot would reduce time under the whip. Pannell is illustrative. He spent nearly three years in the community before his suspended sentence was revoked. We agree with the courts below that the suspended portion of a SSOSA i& analogous to bail or pre-Sentencing Reform Act of 1981 probation, which is not considered in calculating the maximum sentence. In view of the SSOSA revocation, it does not follow that the legislature intended Pannell’s incarceration and subsequent community custody be reduced by nearly three years. To provide credit for time spent under a suspended sentence against the imposed sentence would effectively erode the incentives, which are integral to the SSOSA statute.
¶20 The SSOSA statute offers certain offenders the chance to live and work in the community so long as they comply with treatment and other conditions. The SSOSA statute threatens to deprive offenders of their relative freedom for failure to do so. We hold that under the plain language of the SSOSA statute, RCW 9.94A.670, and in light of the overarching statutory scheme, an offender is not entitled to credit against the maximum sentence for nonconfined time spent when a sentence is suspended pursuant to a SSOSA. We affirm the Court of Appeals.
Since it was first enacted, the Sentencing Reform Act of 1981 has authorized trial judges to give this sentencing alternative. See former RCW 9.94A.120(7) (1981); Laws op 1981, ch. 137, § 12(5). Over the years, the statutory directions have become more and more detailed, and the SSOSA statute has been separately codified as RCW 9.94A.670.
At the time of the offense, this was codified as former RCW 9.94A.670(10) (2000).
“Unless a different maximum sentence for a classified felony is specifically established by a statute of this state, no person convicted of a classified felony shall be punished by confinement or fine exceeding the following”: life imprisonment for a class A felony, 10 years for a class B felony, or 5 years for a class C felony. RCW 9A.20.02K1).
The Court of Appeals held that Pannell’s suspended sentence did not fit the statutory definitions of complete or partial confinement. It is not clear to us that Pannell argues that he was confined. He primarily argues that we must include his time while the sentence was suspended because it is described as community custody in RCW 9.94A.670(5)(b). We do not reach whether some SSOSA conditions could be so onerous as to amount to partial confinement even if they do not meet the statutory definition.
We recognize that the conflict before the Gartrell court revolved in part around a portion of the Sentencing Reform Act of 1981 that generally denies certain categories of offenders’ general release based on earned early release credits. RCW 9.94A.728(2); In re Pers. Restraint of Crowder, 97 Wn. App. 598, 601, 985 P.2d 944 (1999). These provisions are not directly before us today.
Earlier on, Miller had violated the conditions of his suspended sentence by moving into a house with a child. The trial judge sanctioned him with 45 days in jail and modified the judgment and sentence to say, “ ‘Defendant shall NOT have contact with minor children, no exceptions.’ ” Miller, 159 Wn. App. at 915 (quoting record). Nonetheless, six years later, Miller dated a woman with a son who was eight years old, blind, and mildly autistic; spent time alone with the child; lied to his community corrections officer about it; and “allowed the boy to look at his tattoos.” Id. at 917.
At the time Miller was originally sentenced, statutes governing SSOSA were found in a general sentencing statute, former RCW 9.94A.120(8) (1998). Since then, the SSOSA provisions have been codified in RCW 9.94A.670.
Reference
- Full Case Name
- The State of Washington v. Daniel Herbert Pannell
- Cited By
- 12 cases
- Status
- Published