STATE v. WOODWARD, 27341-1-II (Wash.App. 11-1-2002)

No. 27341-1-II.The Court of Appeals of Washington, Division Two.
Filed: November 1, 2002. DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION.

Appeal from Superior Court of Cowlitz County, No. 97-1-00681-1, Hon. James Edgar F. Warme, April 24, 2001, Judgment or order under review.

Counsel for Appellant(s), Leonard W. Copeland, Attorney At Law, 1402 Broadway, Longview, WA 98632.

Counsel for Respondent(s), Matthew W. Butler, Cowlitz Co Pros Atty Ofc, 312 S.W. 1st Ave, Kelso, WA 98626.

KAREN G. SEINFELD, J.

Jeffery Scott Woodward appeals an order modifying his judgment and sentence. The original judgment and sentence referred to community placement `for the period of time provided by law.’ Clerk’s Papers (CP) at 19. The order modifying specified a 36-month community placement, which is the length of time required by law. Woodward contends that the trial court lacked authority to enter the order and that the modification violated his double jeopardy and due process protections. Finding no error, we affirm.

FACTS
On November 7, 1997, Woodward pleaded guilty to first degree child molestation. His statement on plea of guilty provided that, `[i]n addition to confinement, the judge will sentence me to community placement for at least 1 year.’ CP at 8. The presentence investigation report (PSI) noted that community placement was required and it specified 36 months as the length of that placement.

The trial court sentenced Woodward to 68 months of confinement. The judgment and sentence referred to RCW 9.94A.120 and stated `Community Placement is ordered for the period of time provided by law.’ CP at 19.

In late March 2001, the trial court ordered Woodward to appear in court `for proceedings herein on or before the 12th day of April, 2001, to establish the community placement.’ CP at 32. Woodward appeared in court with counsel on April 12, but after Woodward’s counsel protested that he had no information about the proceeding, the court continued the matter to April 24.

On April 24, Woodward’s attorney again protested that he did not know why his client was ordered to appear. The State explained that the Department of Corrections (DOC) had asked that the judgment and sentence be amended to impose a specific 36-month term of community placement. The defense objected, complaining about the alleged absence of proper notice or pleading. Nonetheless, the court signed the order, which modified the judgment and sentence to specify 36 months of community placement.

DISCUSSION
Woodward acknowledges that the law requires a 36-month period of community placement. See former RCW 9.94A.120(10)(a) (2000)[1] and RCW 9.94A.710. But he argues that the trial court’s modification worked a substantive change to his sentence; that the State failed to correct this mistake of law in an appeal; that the modification exposed him to double jeopardy; and that the lack of proper notice, pleadings, and findings regarding the modification violated his right to due process.

A court has the authority to correct an erroneous sentence following a direct appeal or pursuant to CrR 7.8. State v. Broadaway, 133 Wn.2d 118, 136, 942 P.2d 363 (1997); State v. Hardesty, 129 Wn.2d 303, 315, 915 P.2d 1080 (1996). As CrR 7.8(a) explains in part:

Clerical mistakes in judgments, orders or other parts of the record and errors therein arising from oversight or omission may be corrected by the court at any time of its own initiative or on the motion of any party and after such notice, if any, as the court orders.

A judgment and sentence that fails to specify the term of community placement is deficient. Broadaway, 133 Wn.2d at 135. Woodward maintains that this deficiency is an error of law that the State must raise on appeal rather than a clerical error that the trial court can correct pursuant to CrR 7.8(a). In deciding whether an error is clerical, a reviewing court must determine whether the judgment, as amended, embodies the trial court’s intention as expressed in the record at trial. State v. Priest, 100 Wn. App. 451, 456, 997 P.2d 452 (2000); see also Presidential Estates Apartment Assocs. v. Barrett, 129 Wn.2d 320, 326, 917 P.2d 100 (1996) (involving the civil rule counterpart to CrR 7.8(a)). If the answer to that question is yes, the error is clerical because the amended judgment merely corrects language that did not correctly convey the court’s intention. Priest, 100 Wn. App. at 456; Presidential Estates, 129 Wn.2d at 326.

Woodward has not provided this court with the verbatim report of proceedings from his 1997 sentencing hearing. We are left with the original judgment and sentence, which stated that community placement was to be imposed as required by law. Because the pertinent law requires a 36-month term of community placement, the trial court’s action in later specifying that term furthered its original intention in imposing community placement consistent with the law. See former RCW 9.94A.120(10)(a) and RCW 9.94A.710. Thus, the deficiency in the judgment was a clerical error.

Woodward also argues that the modification of his judgment and sentence exposed him to double jeopardy in violation of the Washington Constitution. We interpret the state and federal clauses in the same manner, and both protect against a second prosecution for the same offense after acquittal or conviction and against multiple punishments for the same offense. North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), overruled on other grounds by Alabama v. Smith, 490 U.S. 794, 109 S.Ct. 2201, 104 L.Ed.2d 865 (1989); Hardesty, 129 Wn.2d at 309 n. 2. The double jeopardy clause does not, however, bar a court from correcting a sentencing error by increasing the severity of a sentence to conform to the mandatory provisions of a statute. State v. Traicoff, 93 Wn. App. 248, 253, 967 P.2d 1277
(1998) (citing United States v. DiFrancesco, 449 U.S. 117, 134-35, 101 S.Ct. 426, 66 L.Ed.2d 328 (1980)). To evaluate an alleged double jeopardy violation, we consider whether the defendant has a legitimate expectation of finality in the sentence. DiFrancesco, 449 U.S. at 136; Hardesty, 129 Wn.2d at 311.

Pointing to the phrase `at least 1 year’ of community placement in the plea statement, Woodward claims that he had a reasonable expectation of serving only one year of community placement. CP at 8. But this claim overlooks the PSI recommendation of three years of community placement and the reference in the judgment and sentence to former RCW 9.94A.120, which required 36 months of community placement. Because of the reference to former RCW 9.94A.120, the law charges Woodward with knowledge of the 36-month requirement from the time of entry of the judgment and sentence. Traicoff, 93 Wn. App. at 253-54. Further, the plea statement refers to at least one year of community placement. Thus, Woodward had no legitimate expectation of serving no more than one year of community placement.

Nor is there support for Woodward’s contention that the modification increased his sentence. Again, the judgment and sentence ordered community placement `for the period of time provided by law[,]’ the applicable law required 36 months of community placement, and the court clarified the sentence to reflect that legal mandate. CP at 19.

Relying on Hardesty, Woodward argues next that the trial court abused its discretion in modifying the 1997 judgment and sentence without any motion, affidavit, evidence, or findings to support the modification. But Hardesty dealt with a motion to vacate for fraud under CrR 7.8(b)(3), which requires that a request for relief be brought by motion.[2] 129 Wn.2d at 305-06. Because CrR 7.8(a) rather than CrR 7.8(b) is at issue here, Hardesty is not applicable.

CrR 7.8(a) allows a court to correct a clerical mistake at any time on its own initiative or on a party’s motion. Here, the court modified the judgment and sentence apparently on its own initiative based upon the recommendation of DOC, a non-party. DOC has no authority to correct an erroneous judgment and sentence but may challenge such sentences pursuant to former RCW 9.94A.210(7) (2000).[3] In re Davis, 67 Wn. App. 1, 7-8, 834 P.2d 92 (1992). This statute requires DOC to make `all reasonable efforts’ to resolve the dispute at the superior court level before petitioning for review of an erroneous sentence. Former RCW 9.94A.210(7).[4]

At the hearing on the proposed modification, the State explained that DOC made its recommendation pursuant to Broadaway because it needed to know the specific term of community placement imposed. As it is undisputed that the trial court ordered community placement `for the period of time provided by law’ and cited the applicable statute, but that it did not specify the precise term in the judgment and sentence as Broadaway requires, the court had good reason to correct its clerical error on its own initiative. CP at 19.

Finally, Woodward contends that the proceeding violated his right to due process because he did not receive notice or an opportunity to respond during the modification hearing. Due process is a flexible concept that generally requires notice and a useful opportunity to respond. State v. Cozza, 71 Wn. App. 252, 254-55, 858 P.2d 270 (1993). CrR 7.8(a) does not contain explicit strict due process safeguards, perhaps because it governs only `[c]lerical mistakes.’ But Woodward did receive adequate notice.

Here, the PSI recommended three years of community placement and the 1997 judgment and sentence referenced former RCW 9.94A.120, which required 36 months of community placement. Thus, Woodward was on notice that he was subject to a 36-month term. See Traicoff, 93 Wn. App. at 253-54. Further, the court’s transfer order stated that he was to appear in court `to establish the community placement.’ CP at 32. The court granted Woodward a 12-day continuance during which time Woodward’s counsel could have made inquiries about the issue. And, finally, Woodward appeared in court with counsel, who objected to the State’s proposed modification. Based on this record, Woodward was afforded sufficient notice and an opportunity to be heard. We find no due process violation. Consequently, the trial court did not err in modifying Woodward’s judgment and sentence to provide for a 36-month period of community placement.

Affirmed.

A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.

WE CONCUR: ARMSTRONG, J., HUNT, C.J.