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State v. Anderson

May 29, 1997

THE STATE OF WASHINGTON, RESPONDENT,
v.
ROBERT BAKER ANDERSON, APPELLANT.



Appeal from Superior Court, Clark County. 91-1-00650-4. 91-1-00650-4. Honorable Robert L. Harris, Judge.

Authored by James M. Dolliver. Concurring: Charles Z. Smith, Richard P. Guy, Charles W. Johnson, Barbara A. Madsen, Gerry L. Alexander, Philip A. Talmadge, Richard B. Sanders. Dissenting: Barbara Durham.

The opinion of the court was delivered by: Dolliver

En Banc

DOLLIVER, J.--Defendant claims he should receive jail time credit for the three years he spent on electronic home detention while he unsuccessfully appealed his criminal conviction. We hold the Equal Protection Clause entitles Defendant to the claimed credit.

Defendant, Robert Baker Anderson, was convicted of attempted murder in the second degree and given a nine-year sentence. On the day of his sentencing, Defendant filed an appeal of his conviction and asked the trial court to release him from custody pending the appeal. The trial court agreed to release Defendant under certain strict conditions. Defendant was to post a bail bond of $35,000, and he was to be placed on electronic home detention. He was forbidden from contacting the victim or her family. He was forbidden from using drugs or alcohol and was subject to testing for such substances. He was to live with his brother in King County, and he was allowed to leave the house only to go to work at his brother's job site and to attend anger management classes.

Defendant posted the bond and was released into electronic home detention on February 26, 1992. The Court of Appeals affirmed his conviction in an unpublished opinion. State v. Anderson, No. 15617-2-II (Wash. Ct. App. June 15, 1994). On February 9, 1995, Defendant's petition for review was denied by this court. State v. Anderson, 125 Wash. 2d 1024, 890 P.2d 464 (1995) (memorandum). On March 10, 1995, the Court of Appeals issued its mandate to the trial court, and the trial court revoked Defendant's release and ordered the execution of his judgment. Defendant was credited for time he had spent in jail prior to his conviction and after the conviction prior to his release on bond. He was not credited, however, with the three years spent on electronic home detention.

Defendant now appeals the trial court's refusal to credit him with time served on home detention. Defendant also filed a personal restraint petition (PRP) raising the same issue. The Court of Appeals consolidated the PRP with the appeal and certified the appeal to this court.

I

Defendant first claims he is statutorily entitled to credit for time spent on home detention. His argument relies on a synthesis of several different statutes, RCW 9.94A.030, 9.94A.120, 9.95.060, and 9.95.062. RCW 9.94A.120(16) requires a sentencing court to give the offender credit for all confinement time served before the sentencing if that confinement was solely in regard to the offense for which the offender is being sentenced.

Confinement is defined as "total or partial confinement as defined in this section." RCW 9.94A.030(8). Partial confinement is defined as

confinement . . . if home detention or work crew has been ordered by the court, in an approved residence, for a substantial portion of each day with the balance of the day spent in the community. Partial confinement includes work release, home detention, work crew, and a combination of work crew and home detention as defined in this section.

RCW 9.94A.030(26).

"Home detention" means a program of partial confinement available to offenders wherein the offender is confined in a private residence subject to electronic surveillance.

RCW 9.94A.030(42).

The combination of these quoted statutes requires a sentencing court to credit a defendant with time served on electronic home detention prior to sentencing. State v. Speaks, 119 Wash. 2d 204, 829 P.2d 1096 (1992). In Speaks, the defendant was placed on electronic home detention while awaiting his trial for child molestation. After Speaks was convicted, the sentencing court refused to credit him for the time he had served on home detention. The Court of Appeals, affirming the sentencing court, likened home detention to being on probation, for which no credit is given. State v. Speaks, 63 Wash. App. 5, 7-8, 816 P.2d 95 (1991), rev'd, 119 Wash. 2d 204, 829 P.2d 1096 (1992). This court reversed, reasoning that RCW 9.94A.030 and RCW 9.94A.120 require a sentencing court to credit a defendant with time served on home detention. Speaks, 119 Wash. 2d at 209. Compare State v. Vasquez, 75 Wash. ...


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