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In re Christensen

January 21, 1997

IN THE MATTER OF THE SENTENCE OF: JASON KENNETH CHRISTENSEN


Date first document (petition, etc) was filed in Court of Appeals: 10/16/95.

PER CURIAM. The Department of Corrections (the Department) has filed a post-sentence petition challenging respondent Jason Christensen's sentence for delivering cocaine, pursuant to RAP 16.18 and RCW 9.94A.210(7). The Department did not communicate its legal position directly to the trial court. Accordingly, the Department did not exhaust all reasonable efforts to resolve the dispute at the superior court level, and we dismiss the petition.

Christensen pleaded guilty to violating the Uniform Controlled Substances Act. The judgment and sentence lists the standard range as 45-51 months, apparently calculated by adding to the standard range of 21-27 months the 24-month enhancement because Christensen committed the offense in a public park. RCW 9.94A.310(6); RCW 69.50.435(a). The court then imposed a special drug offender sentencing alternative of 12 months in prison under RCW 9.94A.120(6)(b).

The State (King County Prosecutor) did not appeal. The record indicates that Department personnel telephoned the trial deputy prosecutor a few days after sentencing in July 1995 to assert the Department position that the court erred in omitting the 24-month sentence enhancement. The Department contends the deputy prosecutor spoke with a Department staff member again in August, informing them a hearing would be held that month.

According to the staff member, the deputy later reported the court had refused to change the sentence.

According to the Department's counsel, the deputy subsequently told her that no hearing was held. *fn1 Counsel states in her declaration that she contacted the King County Superior Court clerk's office, who informed her that no post-sentence hearing was noted in the case. Accordingly, the Department concedes that no hearing was ever held.

The Department filed this petition arguing the court failed to properly take into account the 24-month enhancement when calculating the midpoint of the standard range for purposes of the special drug offender sentencing alternative. We do not reach this issue because we agree with the respondent that the Department did not comply with the requirements for filing a post-sentence petition.

RAP 16.18 directs that a post-sentence petition should contain a "statement by the Department of Corrections of all efforts that have been made to resolve the dispute at the superior court level, and the results thereof" and "any response of the superior court regarding the Department's administrative efforts to resolve the issue." RAP 16.18(d)(6), (10). In addition, RCW 9.94A.210(7) provides that the petition "shall include a certification by the Department that all reasonable efforts to resolve the dispute at the superior court level have been exhausted." Because the statute gives the Department the power to seek review when the State's traditional representative, the prosecutor, chooses not to do so, the statute departs from traditional principles. Accordingly, its requirements should be strictly observed. In re Hilborn, 63 Wash. App. 102, 104, 816 P.2d 1247 (1991), review denied, 118 Wash. 2d 1013, 824 P.2d 491 (1992).

The Department asserts that it usually sends a letter to both the Judge and the deputy prosecutor. Without citing authority, the Department contends that in this case it was entitled to rely on the deputy prosecutor's representations that a hearing was held and that the Judge had refused to correct the sentence. The Department contends that its contacts with the prosecutor constituted reasonable efforts to resolve the issue in the trial court.

We do not agree. Both the rule and the statute clearly anticipate some direct communication between the Department and the trial court. The Department's assertion that it generally writes to the trial Judge to state its objections to a sentence is borne out by the facts in In re Hilborn, 63 Wash. App. at 102 and In re Chatman, 59 Wash. App. 258, 796 P.2d 755 (1990).

These cases reveal that Department personnel and counsel wrote to the respective trial Judges to assert the Department's legal position on the sentencing issues. In Chatman, this court held that a formal petition or motion in the trial court is not required and that the Department's letters to inform the court of the legal bases for its objections were adequate.

Chatman, 59 Wash. App. at 264-65.

In this case, the Department's "administrative efforts" consisted of telephoning the prosecutor instead of directly informing the trial court of its legal arguments. The fallacy of this approach is apparent from the subsequent developments. The Department apparently relied on alleged oral representations by the prosecutor that he would schedule a hearing. The Department now concedes that the hearing never occurred.

The decision to rely on telephone communications with the prosecutor resulted in a virtually barren record, with no clear indication that any post-sentence contact with the trial court occurred. Consequently, we cannot determine whether the argument in this petition was ever presented to the trial court as required for a post-sentence petition. In fact, all indications are to the contrary. Additional minimal efforts, such as a letter from the Department to the Judge, could have cured this deficiency.

In sum, the telephone communications with the prosecutor did not exhaust all reasonable efforts to resolve the matter before ...


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