State v. Allen

THE STATE OF WASHINGTON, Respondent, v. JESSE LEE ALLEN, Appellant.

No. 79736-1-I

COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE

November 2, 2020

UNPUBLISHED OPINION

BOWMAN, J. — Jesse Lee Allen appeals his sentence for two counts of child molestation in the first degree. Allen challenges the trial court's authority to impose a sentence consecutive to his federal sentence for production and possession of child pornography arising from the same incidents. He claims his sentence goes against the intent of RCW 9.94A.589(3) because the State purposefully delayed filing child molestation charges until after his convictions in federal court. Allen also challenges several conditions of community custody and the imposition of supervision fees. We affirm Allen's sentence but remand to strike or modify certain conditions of community custody and strike the supervision fees.

FACTS

In October 2016, Allen's girlfriend discovered three videos on his cell phone showing him sexually abusing her six-year-old daughter in Allen's home. She confronted Allen about the videos and he confessed to the incidents, admitting that he "has a problem."

The State charged Allen with one count of first degree child rape and one count of first degree child molestation. Three weeks later, the United States Attorney's Office charged Allen in federal court with one count of production of child pornography and one count of possession of child pornography because he recorded and kept images of the sexual assaults on his cell phone.¹ The next day, the State dismissed its charges without prejudice, noting it "may refile charges following the federal prosecution." Allen did not object.

About 15 months later, Allen pleaded guilty as charged in federal court. The federal judge sentenced Allen in August 2018 to 20 years of confinement on one count and 10 years of confinement on the other count, running concurrently with one another.² On the same day as Allen's federal court sentencing, the State filed a new information charging him with two counts of first degree child molestation stemming from the same 2016 incidents. Allen did not object to the refiled charges.

Allen pleaded guilty to both charges in January 2019. The State's sentencing recommendation indicated the prosecutor planned to seek asentence consecutive to that imposed for Allen's federal convictions. The felony plea agreement also included a "real facts" stipulation to the certification for determination of probable cause and the prosecutor's case summary.

The trial court sentenced Allen in March 2019. Defense counsel argued for a sentence within the standard range. He also urged the court to impose a sentence concurrent with Allen's federal sentence because all charges stemmed from "conduct that was occurring at the same time" and because Allen was already subject to an enhanced offender score based on the federal convictions.³ Counsel argued the legislature presumed that "conduct that occurred simultaneously" would be sentenced concurrently, despite convictions for the conduct in different jurisdictions, and asked the judge to "look at the statutes and to look at the legislative intent and apply that to this situation." He asserted that a consecutive sentence was "clearly not what the legislature intended this Court to do."

The State requested a sentence at the high end of the standard range to run consecutive to Allen's federal sentence. The State argued Allen's conduct warranted such a sentence. The State also pointed out that if the case had stayed in state court, it could have charged one of the molestation counts as rape of a child in the first degree and could have added counts for possession of depictions of minors engaged in sexually explicit conduct. It argued that "[e]achof those would have counted and each would have scored and the State could have potentially asked for the three crimes or some exceptional sentence."

The victim's mother and grandmother addressed the court at sentencing. They spoke about the continued impact of the crimes on the victim and their family. Allen submitted a written letter and addressed the court on his own behalf. Allen's mother and brother also submitted letters supporting him and were present at the sentencing hearing. The court imposed an indeterminate sentence of 198 months to life on each count to run concurrently with each other but consecutive to the federal sentence.

The prosecutor asked for the "standard" community custody conditions listed in a preprinted form attached to the judgment and sentence as "Appendix H." Appendix H included a requirement that Allen "[p]ay supervision fees as determined by the Department of Corrections [(DOC)]." The prosecutor also asked for "special" crime-related conditions, arguing that the conditions "all . . . have a nexus to this particular offense." Appendix H listed the special conditions related to "sex offenses," requiring that Allen:

5. Inform the supervising CCO⁴ and sexual deviancy treatment provider of any dating relationship. Disclose sex offender status prior to any sexual contact. Sexual contact in a relationship is prohibited until the treatment provider approves of such.

. . . .

17. . . . Stay out of areas where children's activities regularly occur or are occurring. This includes parks used for youth activities, schools, daycare facilities, playgrounds, wading pools, swimming pools being used for youth activities, play areas (indoor or outdoor), sports fields being used for youth sports, arcades, and any specific location identified in advance by DOC or the CCO.. . . .

19. . . . Do not purchase or possess alcohol.

. . . .

23. . . . No [I]nternet access or use, including e[-]mail, without the prior approval of the supervising CCO.

24. . . . No use of a computer, phone, or computer-related device with access to the Internet or on-line computer service except as necessary for employment purposes (including job searches). The CCO is permitted to make random searches of any computer, phone, or computer-related device to which the defendant has access to monitor compliance with this condition.

The court imposed all of the requested conditions but amended condition 19 prohibiting Allen from purchasing or possessing alcohol to include "or any other controlled substances under [the] Uniform Controlled Substances Act[, chapter 69.50 RCW]." It also imposed only nondiscretionary legal financial obligations, ordering that Allen pay the mandatory victim penalty assessment of $500 and the mandatory DNA⁵ collection fee of $100. Two weeks later, the court also signed an "Order of Indigency," waiving fees and appointing counsel at public expense on appeal. Allen appeals.⁶

ANALYSIS

Consecutive Sentence

Allen claims the trial court erred by imposing a sentence consecutive to his federal confinement. He argues we must vacate his sentence and impose a concurrent sentence because the trial court lacked authority to impose aconsecutive sentence where the State "intentionally delays charges to manipulate the timing of the sentences."

We review a trial court's imposition of consecutive sentences for an abuse of discretion. State v. Champion, 134 Wn. App. 483, 487, 140 P.3d 633 (2006). A trial court abuses its discretion when its decision is manifestly unreasonable or exercised on untenable grounds or for untenable reasons. State v. Lord, 161 Wn.2d 276, 283-84, 165 P.3d 1251 (2007). An abuse of discretion occurs when the trial court applies the wrong legal standard or bases its ruling on an erroneous view of the law. State v. Ramirez-Estevez, 164 Wn. App. 284, 289-90, 263 P.3d 1257 (2011).

Here, the trial court imposed a consecutive sentence under RCW 9.94A.589(3),⁷ which states, in pertinent part:

[W]henever a person is sentenced for a felony that was committed while the person was not under sentence for conviction of a felony, the sentence shall run concurrently with any felony sentence which has been imposed by any court in this or another state or by a federal court subsequent to the commission of the crime being sentenced unless the court pronouncing the current sentence expressly orders that the confinement terms be served consecutively to each other.

When a statute is unambiguous, we derive the legislature's intent from the plain language alone. State v. Wentz, 149 Wn.2d 342, 346, 68 P.3d 282 (2003). Allen concedes that the language of RCW 9.94A.589(3) unambiguously gives broad discretion to a sentencing court to impose either a concurrent or consecutive sentence for a crime the defendant committed before serving afelony sentence for a different crime. See State v. Mathers, 77 Wn. App. 487, 494, 891 P.2d 738 (1995). The court need only expressly order that the defendant serve the sentence consecutively. RCW 9.94A.589(3); Mathers, 77 Wn. App. at 494.

But Allen argues that "courts must 'avoid a literal reading of a statute if it would result in unlikely, absurd, or strained consequences.' "⁸ He asserts that imposing a consecutive sentence after the State intentionally delayed events to "ramp up Allen's prison time" goes against legislative intent. Allen urges us to interpret the statute "to preclude consecutive sentences under these circumstances." Allen offers State v. Moore, 63 Wn. App. 466, 820 P.2d 59 (1991), in support of his argument.

In Moore, the defendant was convicted of two separate second degree burglary charges in 1987. Moore, 63 Wn. App. at 467. He then failed to appear for sentencing. Three years later, the defendant was arrested and convicted of felony assault. Moore, 63 Wn. App. at 467. The court sentenced him on all three convictions at the same hearing. Moore, 63 Wn. App. at 467-68. It first imposed concurrent sentences for the burglary convictions. It then expressly ordered the sentence for the assault to run consecutive to the burglary sentences under former RCW 9.94A.400(3) (1988).⁹ Moore, 63 Wn. App. at 468. The defendant argued that because he was sentenced for all three crimes at the...