IN MATTER OF WALKER, 53819-5-I (Wash.App. 3-14-2005)

No. 53819-5-IThe Court of Appeals of Washington, Division One.
Filed: March 14, 2005 UNPUBLISHED OPINION

Date first document (petition, etc) was filed in Court of Appeals: 02/23/2004.

Counsel for Petitioner(s), Christopher Gibson, Attorney at Law, 1908 E Madison St, Seattle, WA 98122.

Ray Walker (Appearing Pro Se), #269130, PO Box 2139, Airway Heights, WA 99001-2139.

Counsel for Respondent(s), Alex a Kostin, Criminal Justice Division, PO Box 40116, Olympia, WA 98504-0116.

PER CURIAM.

When the sentencing court imposed community placement as part of Ray Walker’s sentence, former RCW 9.94A.120(9)(b)[1]
required certain community placement conditions `[u]nless . . . waived by the court [.]’ Because the record is ambiguous as to whether the court’s omission of those conditions from Walker’s judgment and sentence was intentional, we remand to the sentencing court for clarification of the judgment and sentence and resolution of the petition.

FACTS
In 2001, the superior court sentenced Walker for a first degree burglary committed in June 2000. The sentence included community placement. An `APPENDIX H’ attached to the judgment listed statutory conditions of community placement, including the requirement that Walker `[r]eceive prior approval for living arrangements and residence location [.]’

In 2003, following an appeal and remand, the court resentenced Walker. The judgment and sentence again imposed community placement. The judgment also stated that `APPENDIX H for Community Placement conditions is attached and incorporated herein,’ but no such appendix was attached.

In 2004, Walker filed this personal restraint petition alleging that the Department of Corrections was unlawfully denying him release on his earned early release date because he had not furnished the Department with a preapproved residential address.

ANALYSIS
Walker’s sole argument is that the Department `has no authority to impose sentencing conditions that the resentencing court did not impose.’[2] He contends the court waived the conditions in former RCW 9.94A.120(9)(b) when it omitted Appendix H from the second judgment and sentence. He correctly points out that the court attached new versions of other appendices that had been attached to the first judgment and sentence, but did not attach Appendix H. The Department, on the other hand, points out that the second judgment states that Appendix H `is attached and incorporated herein,’ indicating the court’s intent to impose the statutory conditions. Although this record strongly suggests that the omission of the appendix was inadvertent, the record is ambiguous. We therefore remand the petition to the sentencing court for clarification of the judgment and sentence and resolution of the petition.[3] If the court waives the conditions, the petition should be granted. Otherwise, the petition should be denied.