community custody

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  1. community custody
    1. Relevant Statutes
    2. Practice Notes:
    3. Historical Note
    4. Generally
    5. Sentences less than a year, post 2003
    6. Community Custody as a factual determination
    7. When Community custody commences and ends
    8. Scoring issues
    9. Definiteness of period of community custody in sentence
    10. Tolling
    11. Community Custody Effective Dates:
    12. Community Custody “conditions”

community custody

Community Custody WAC 137-104-050 et seq.

Relevant Statutes

Community custody generally: [WWW]RCW 9.94A.545
Community custody ranges: [WWW]9.94A.715 (for specified offenders), [WWW]RCW 9.94A.545 (sentences less than a year, recodified from 9.94A.383)
Community custody violations: [WWW]RCW 9.94A.737RCW
Time for Community Custody hearings: [WWW]9.94A.737 (4)(c)
Crimes Against persons: [WWW]RCW 9.94A.411(2)
Tolling: [WWW]RCW 9.94A.625
Conditions on Community Custody: [WWW]9.94A.700(4)(mandatory conditions, unless waived by the court); See also, [WWW]RCW 9.94A.715 and [WWW]9.94A.720
Community Placement: [WWW]RCW 9.94A.700
Community Custody hearing appeals: WAC 137-104-080

Practice Notes:

Felons sentenced to less than a year, and who have done time in county jails, are considered “inmates” under RCW 72.09.015 (11). Hence, failure to report to DOC as part of community custody constitutes escape under RCW 72.09.310. State v. Rizor, 121 Wn. App. 898 (2004).

Historical Note

As part of the 1999 Offender Accountability Act, “Community custody” replaced “community supervision”, “community placement” and “post-release supervision”. Community custody ranges became effective for eligible offense committed on/after July 1, 2000. After July 1, 2000 community custody will be the only form of supervision required for all sex offenses, all serious offenses, all violent offenses, all crimes against persons as defined in [WWW]RCW 9.94A.411 and all felony drug offenses. DOC may impose affirmative conditions, as long as they are not in contravention of court order. See,[WWW]RCW 9.94A.505.

Generally

A trial court may not impose a sentence, including any term of supervision, placement or custody that exceeds the statutory maximum. [WWW]RCW 9.94.505(5), formerly 9.94A.120(14); See, State v. Hudnall, 116 Wn. App. 190 (2003)(need to downward depart from statutorily required period of community custody was justified by the need to stay within the statutory maximum for the offense).

Sentences less than a year, post 2003

Amendments in 2003 to 9.94A.545 unambiguously limits the court’s authority to impose community custody in sentences for 12 months or less to the offense listed in the statute, including 1) a sex offense, 2) a violent offense, 3) a crime against a person, or 4) a felony violation of 69.50/52 [drug offense]. Further, the court has no authority to impose chemical dependency treatment for offenses outside of enumerated crimes. Sentence of Jones, 129 Wn. App. 626 (2005)(finding court exceeded its statutory authority and remanding for sentencing in three consolidated cases, offenses including Theft 2, PSP 2, Forgery, VUFA 2, Possession of explosives 2).

Community Custody as a factual determination

Defendants have a right to have a jury determine whether they were on community placement for a prior offense at the time of committing their current offense before such fact may be used to increase their offender score, following the rulely in Blakely v. Washington. Whether a defendant is on commuity placement on a given date is largely determined by DOC’s view of the defendant’s [prison] behavior. State v. Jones,126 Wn. App. 136 (2005), review granted 155 Wn.2d 1017 (2005) and distinguishing State v. Van Buren, 123 Wn. App. 634 (2004)

When Community custody commences and ends

[WWW]RCW 9.9A.030(5) defining community custody makes clear that community placement begins after confinement. State v. Jones, 126 Wn. App. 136, 142 review granted [on other grounds] 155 Wn.2d 1017 (2005).

Conditions on Community Custody. See, [WWW]RCW 9.94A.715; [WWW]RCW 9.94A.700 RCW 9.94A.720 (DOC-imposed conditions); [WWW]RCW 9.94A.700(4)(mandatory conditions, unless waived by the court); for DOC policy on Imposed conditions both pre and post July, 2000, see, DOC Policy Directive 390.600.

WAC 137-104-040 provides that “when placed on community custody, offenders shall be provided with written notice of all court and department-imposed conditions and/or requirements”; see also, [WWW]RCW 9.94A.715(2)(c)(requiring DOC-imposed conditions in writing).

A court may condition community custody by requiring that 1) the offender obey all laws; (2) an order that offender not consume alcohol regardless of whether alcohol contributed to the crime; (3) that a court may not order an offender to participate in alcohol counseling unless use of alcohol was “crime-related” (and, despite the language in [WWW]RCW 9.94A.715 (2)(b), DOC may not order the condition); and (4) that a court may not order an offender to participate in mental health treatment or counseling unless the court finds, based on a presentence report and any applicable mental status evaluations, that the offender suffers from a mental illness which influenced the crime. State v. Jones, 118 Wn. App. 199 (2003)(Div. II).

Scoring issues

Community custody is a subset of community placement. Therefore, the court properly imposed an additional point in sentencing. State v. Crandall, 117 Wn. App. 448 (2003)(Div.II).

Definiteness of period of community custody in sentence

Language for period of community custody termed as either the “applicable statutory term” or the “entire period of earned early release” is sufficiently precise language in the Judgment and Sentence when the precise term can not be set because it depends on defendant’s performance entitling him to earned early release, i.e. good time. State v. Mitchell, 114 Wn. Ap. 713 (2002).

Tolling

Defendant’s term of community placement was “tolled” for 17 months on his sentence of 43 months while he served a concurrent 60 month sentence. This did not constitute an exceptional sentence, and did not violate statutory maximums. State v. Acrey, 97 Wn. App. 784 (1999); State v. Cameron, 71 Wn. App. 653, 657, 861 P.2d 1069 (1993) (holding that the period of community supervision is tolled while the offender remains confined on another sentence that is being served concurrently).

Community Custody Effective Dates:

June 6, 1996 Non-SSOSA offenders who go to prison shall be sentenced to 3 years of community custody; conditions are the same as community place conditions in RCW 9.94A.12(9)(b)(c); Ch 275-10 effective July 1, 2000: Under the 1999 Offender Accountability Act all forms of supervision in the community will be called “community custody”

Community Custody “conditions”

The community placement condition posess or peruse no pornography is unconstitutionally vague. While certain matters may properly be delegated by the court to the DOC and CCO, delegation to the CCO to define it is “excessive” delegation. State v. Sansone, #00-1-05098-1 (May 23, 2003); U.S. v. Guagliardo, 278 F.3d 868 (9th Cir, 2002); U.S. v. Loy, 237 F.3d 251 (3rd Cir. 2001).
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