Opinion
No. 24341-5-II.
Filed: June 2, 2000. DO NOT CITE. SEE RAP 10.4(h) UNPUBLISHED OPINION
Appeal from Superior Court of Pierce County, No. 96-1-04792-1, Hon. Bruce W. Cohoe, 01/13/1999, Judgment or order under review.
Linda J. King, Attorney At Law, for appellant(s).
Kathleen Proctor, Pierce County Deputy Pros Atty, for respondent(s).
Darrin Michael Calloway appeals an order that corrected his earlier judgment and sentence for possessing methamphetamine. We affirm.
On December 13, 1996, Tacoma police lawfully found methamphetamine on Calloway's person. On December 16, 1996, the State charged him with possession of a controlled substance. On March 13, 1997, he was convicted on the basis of stipulated facts. The court orally pronounced a sentence of 22 months confinement and 12 months community placement. The prosecutor said she would present written findings, but she never did so. The court and both counsel signed a written judgment and sentence that omitted community placement. Calloway did not appeal.
Calloway participated in Pierce County's drug-court program for a short time in February and March, but that fact is not material here.
This term was to run concurrently with the 47 month term imposed on a burglary charge.
Almost two years later, the State moved to amend the written judgment and sentence by adding the community placement that the court had ordered orally. Defense counsel signed the proposed order, and the State presented it to the court without Calloway being present. The court entered the order on January 13, 1999, and Calloway filed this appeal on February 4, 1999.
Calloway claims that the superior court lacked 'jurisdiction' over the 1996 drug charge. As he acknowledges, however, a court has 'jurisdiction' if it has subject matter jurisdiction and personal jurisdiction. The superior court had subject matter jurisdiction here, for it had the power to adjudicate felonies like possession of a controlled substance. The superior court had personal jurisdiction here, for it had Calloway before it. Accordingly, this 'jurisdiction' claim fails.
Br. of Appellant at 9.
State v. Werner, 129 Wn.2d 485, 493, 918 P.2d 916 (1996); In re Runyan, 121 Wn.2d 432, 441 n. 5, 853 P.2d 424 (1993); State v. B.P.M., 97 Wn. App. 295, 298, 982 P.2d 1208 (1999); State v. Waters, 93 Wn. App. 969, 976, 971 P.2d 578 (1999).
Wash. Const. art. IV, sec. 6 (power to adjudicate felonies); RCW 69.50.401 (possession of methamphetamine is a felony); State v. Moen, 129 Wn.2d 535, 545, 919 P.2d 69 (1996) (subject matter jurisdiction exists 'where the court has the authority to adjudicate the type of controversy in the action') (emphasis added); In re Vehlewald, 92 Wn. App. 197, 201-02, 963 P.2d 903 (1998) (same); see also B.P.M., 97 Wn. App. at 298.
Calloway claims that the trial court lacked authority to enter the order dated January 13, 1999. CrR 7.8(a) provides that '{c}lerical 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{.}' Omitting community placement was a mistake of that kind, and the trial court had authority to correct it.
Calloway claims that the trial court violated double jeopardy when it entered the order dated January 13, 1999. His essential premises are (1) that the trial court sentenced him twice, and (2) that double jeopardy bars a second sentence. The first premise is flawed; rather than imposing a second sentence, the trial court merely implemented the first sentence as orally announced. Moreover, the second premise is also flawed. Double jeopardy does not prohibit resentencing, at least where the defendant has not reasonably relied upon the original sentence. Calloway did not reasonably rely here, for he was present when the court orally imposed community placement, and he knew or should have known that the written judgment inadvertently omitted community placement. We hold that Calloway was not put twice in jeopardy.
State v. Hardesty, 129 Wn.2d 303, 310, 915 P.2d 1080 (1996); State v. Traicoff, 93 Wn. App. 248, 256, 967 P.2d 1277 (1998), review denied, 138 Wn.2d 1003 (1999); United States v. DiFrancesco, 449 U.S. 117, 137, 101 S.Ct. 426, 66 L.Ed.2d 328 (1980).
Calloway claims that he had a right to be present when the order of January 13, 1999, was entered, because that was a 'critical stage' of the case. In In re Lord, the Washington Supreme Court described the constitutional right to be present. It said:
The core of the constitutional right to be present is the right to be present when evidence is being presented. United States v. Gagnon, 470 U.S. 522, 526, 84 L.Ed.2d 486, 105 S.Ct. 1482 (1985) (per curiam). Beyond that, the defendant has a 'right to be present at a proceeding "whenever his presence has a relation, reasonably substantial, to the fulness of his opportunity to defend against the charge. . . ."' Gagnon, 470 U.S. at 526 (quoting Snyder v. Massachusetts, 291 U.S. 97, 78 L.Ed. 674, 54 S.Ct. 330, 90 A.L.R. 575 (1934).
In re Lord, 123 Wn.2d 296, 306, 868 P.2d 835, cert. denied, 513 U.S. 849 (1994).
Here, Calloway's presence or absence on January 13, 1999 was of no practical effect. He had received a full opportunity to defend against community placement during the sentencing hearing on March 13, 1999. The court had orally ruled that community placement would be imposed, and all that remained was to enter a written order conforming to the ruling. In January 1999, defense counsel signed the order, thus confirming that it conformed. Assuming without holding that there are situations in which the entry of a corrective order might be a 'critical stage,' this is not one of them.
See United States v. Truscello, 168 F.3d 61, 63-64 (2d Cir.) (trial court could enter written judgment and sentence without defendant's presence where defendant was present for oral sentencing, and oral and written sentences did not conflict), cert. denied, 120 S.Ct. 335 (1999); Cherry v. State, 361 F. Supp. 1284, 1288 (N.D.Tex. 1973) (written judgment and sentence was a ministerial act rather than a critical stage); United States v. Sumpter, 287 F. Supp. 608, 609 (S.D.Tex. 1968) (same); State v. Mazurek, 537 P.2d 51, 55 (N.M.App. 1975) (trial court could enter written judgment and sentence without defendant's presence where defendant was present for oral sentencing, and entry of written judgment and sentence was merely a ministerial act); CrR 3.4 (defendant required to be present at the 'imposition' of sentence).
Calloway argues that the trial court erred by not entering written findings and conclusions. Although we agree, we decline to remand on that ground. 'Where there is no dispute of fact, the remanding of a case for formal findings is a useless and unnecessary act in which this court will not engage.' The facts are not in dispute here indeed, Calloway stipulated to them and a remand would be useless.
State v. Mecca Twin Theater Film Exchange, Inc., 82 Wn.2d 87, 93, 507 P.2d 1165 (1973); see also Cogswell v. Cogswell, 50 Wn.2d 597, 601, 313 P.2d 364 (1957).
Calloway assigns error to rulings made in 1997. He was required, however, to appeal those rulings within 30 days of March 13, 1997. He did not do so, and he is not now entitled to have them reviewed.
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.
MORGAN, P.J.
We concur: SEINFELD, J., HOUGHTON, J.