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In re Postsentence Review of Bercier

Court of Appeals of Washington, Division 3

November 26, 2013

In re Postsentence Review of Gabriel Lee Bercier

Appeal from Walla Walla Superior Court. Docket No: 12-1-00127-5. Date filed: 07/23/2012. Judge signing: Honorable John W Lohrmann.

Robert W. Ferguson, Attorney General, and Ronda Larson, Assistant, for petitioner.

James L. Nagle, Prosecuting Attorney, and Gabriel E. Acosta, Deputy, for respondent State of Washington.

Janet G. Gemberling (of Janet Gemberling PS ), for respondent Bercier.

Authored by Stephen M. Brown. Concurring: Teresa C. Kulik, Kevin M. Korsmo.

OPINION

Brown, J.

[178 Wn.App. 149] ¶ 1 The Department of Corrections petitions under RCW 9.94A.585(7) for review of

Page 492

an amended order revoking Gabriel Lee Bercier's residential treatment-based DOSA [1] sentence and imposing a standard range prison sentence without credit for community custody time served. Because RCW 9.94A.660(7)(d)'s plain language provides credit for " any time previously served under this section," including community custody served in the form of a residential treatment-based DOSA sentence, we grant the department's postsentence review petition.

FACTS

¶ 2 In June 2012, Mr. Bercier pleaded guilty to methamphetamine possession. The sentencing court imposed 24 months' community custody in the form of a residential treatment-based DOSA sentence. In January 2013, after he failed to comply with residential treatment, the sentencing court issued an order revoking his DOSA sentence and imposing a standard range prison sentence under RCW 9.94A.660(7)(c). The order included a notation prohibiting Mr. Bercier from receiving credit for community custody [178 Wn.App. 150] time served. Without success, the department contacted the court and parties seeking an amended order striking this notation. In April 2013, the sentencing court issued an amended order retaining the notation while adding a postrevocation community custody term.

¶ 3 The department petitioned this court for postsentence review under RCW 9.94A.585(7). This court requested supplemental briefing on the applicability of In re Postsentence Review of Combs, 176 Wn.App. 112, 308 P.3d 763 (2013). After considering the supplemental briefing we decide the department's petition on statutory interpretation grounds.

ANALYSIS

¶ 4 The issue is whether the sentencing court erred by prohibiting Mr. Bercier from receiving credit for community custody time served. The department contends the sentencing court erred by disregarding RCW 9.94A.660(7)(d)'s plain language providing credit for " any time previously served under this section," including community custody served in the form of a residential treatment-based DOSA sentence.[2] Mr. Bercier agrees. The State ...


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