The Whatcom County Superior Court convicted petitioner Jeffrey Brooks of three counts of first degree attempted robbery and sentenced him to 120 months total confinement and 18-36 months of community custody.  Brooks sought relief from personal restraint on a claim that his sentence violated RCW §9.94A.505(5) by potentially imposing a term of confinement and community custody that exceeded the 10 year maximum allowed for a conviction for attempted robbery in the first degree.  The Court of Appeals denied Brooks’ personal restraint petition (PRP), and the Supreme Court of Washington granted Brooks’ request for discretionary review.

Questions:

Is the amended judgment and sentence facially valid and lawful under the Sentencing Reform Act of 1981 (SRA), Chap. 9.94A RCW?

Conclusion:

Justice Tom Chambers’ opinion for a unanimous Court held that since the Court of Appeals commissioner denied review on the condition that the State obtain an amended judgment and sentence clarifying that Brooks’ period of total confinement and community together could not exceed the statutory maximum for attempted robbery in the first degree, along with the facts that the State successfully obtained the clarification and the trial court entered an order amending the judgment and sentence consistent with the commissioner’s decision, the amended judgment and sentence were facially valid.  The added community custody range to the term would only exceed the statutory maximum of confinement if it presumed both that Brooks would earn something less than 18 months of earned early release credits and that the Department of Corrections would ignore the mandates of the SRA, Chap. 9.94A RCW.  Since the SRA gave the courts the power to impose sentences and the DOC the responsibility to set the amount of community custody to be served within that sentence, the amended judgment and sentence were valid and Brooks PRP was denied.

Respondent Mark Mattson was an incarcerated sex offender and sought relief from personal restraint on a claim that his plan for release to community custody for good behavior was unlawfully denied by the Department of Corrections (DOC), under policy directive by which the DOC excludes from consideration release plans submitted by sex offenders whom the department determines meet the criteria for civil commitment as sexually violent predators (SVP).  The court of Appeals granted Mattson’s personal restraint petition (PRP) and ordered the DOC to consider Mattson’s release plan on its merits, holding that Mattson has a protected liberty interest in early release to community custody under RCW §9.94A.728(2), and that the DOC does not have the authority to categorically refuse to consider Mattson’s release plan on its merits.  The DOC petitioned for discretionary review to the Supreme Court of Washington.

Questions:

Did the Court of Appeals err in its opinion that Mattson had a protected liberty interest in early release to community custody pursuant to RCW §9.94A.728(2)?

Conclusion:

Justice Barbara Madsen’s opinion for the Court held tht RCW §9.94A.728(2) does not establish a protected liberty in early release to community custody.  The DOC had the statutory authority to determine eligibility standards for sex offenders for release to community custody, and therefore had the authority to deny Mattson’s eligibility plan for such release on the basis of prior psychological examinations.  Because Mattson was found to not meet the eligibility criteria, the DOC had no duty under the statute or DOC policy to evaluate the merits of Mattson’s release plan.  Finding that the Court of Appeals erred, the Court reversed the decision and denied Mattson’s PRP.

Respondent Yulanda Leach pleaded guilty to attempted assault of a child in the second degree, and was sentenced to 23.25 months confinement and between nine and 18 months community custody.  The Department of Corrections petitioned for postsentence review on the community custody component of the sentence, arguing “attempted assault” of a child is not a specifically enumerated offense for which a defendant can be sentenced to community custody according to Wash. Rev. Code §9.94A.715. The Washington Court of Appeals denied the Department of Correction’s petition, holding that attempted second degree assault of a child qualifies for a term of community custody and that the conviction can be included in the illustrative examples of “crimes against persons” found under Wash. Rev. Code §9.94A.411(2).  The Supreme Court of Washington granted the Department of Corrections’ petition for review. 

Questions:

Can a court sentence an offender to community custody for attempted second degree assault of a child, even though “attempted Assault” is not on the enumerated list of offenses described as “crimes against persons?”  Should the list be viewed as illustrative examples, or as an exclusive and complete designation of crimes sufficient for community custody sentencing?

Conclusion:

Justice Richard B. Sanders’ opinion for the Court concluded that the Department of Corrections was correct in arguing a court cannot add “attempted assault” or any other anticipatory offenses to Wash. Rev. Code 9.94A.411(2) as judicial gloss because the statute presents an exhausted list of “crimes against persons.”  Nothing in the statute suggests the list should be viewed as illustrative, and the legislature plainly meant for the 47 enumerated crimes to be the exclusive and complete list of “crimes against persons,” which does not include “attempted assault.”  The Court remanded the case to the trial court for resentencing without community custody.