Court of Appeals Division III 

State of Washington
Opinion Information Sheet


Docket Number: 28370-4
Title of Case: State of Washington v. Joshua C. Combs
File Date: 06/17/2010


SOURCE OF APPEAL
----------------
Appeal from Asotin Superior Court
Docket No: 09-1-00118-1
Judgment or order under review
Date filed: 08/13/2009
Judge signing: Honorable Ray Duane Lutes


JUDGES
------
Authored by Kevin M. Korsmo
Concurring: Teresa C. Kulik
Dennis J. Sweeney


COUNSEL OF RECORD
-----------------

Counsel for Appellant(s)
David L. Donnan
Washington Appellate Project
1511 3rd Ave Ste 701
Seattle, WA, 98101-3635


Lila Jane Silverstein
Washington Appellate Project
1511 3rd Ave Ste 701
Seattle, WA, 98101-3647

Counsel for Respondent(s)
Teresa Jeanne Chen
Attorney at Law
Po Box 40
Soap Lake, WA, 98851-0040


Benjamin Curler Nichols
Asotin County Prosecutors Office
Po Box 220
Asotin, WA, 99402-0220





IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON, ) No. 28370-4-III
)
Respondent, )
)
v. ) Division Three
)
JOSHUA C. COMBS )
)
Appellant. ) PUBLISHED OPINION

Korsmo, J. -- Joshua Combs pleaded guilty to eluding a police officer six months

after he was released from prison on a drug possession charge. The trial court imposed

an exceptional sentence on the basis of a finding of "rapid recidivism." We reverse.

FACTS

Joshua Combs was released from prison to community custody on January 16,

2009, after serving 19 months of a 24-month sentence for possession of

methamphetamine. Prior to his release from prison, he was arraigned in Asotin County
on a felony charge.1 A bond was set and conditions of release were imposed. Sometime

No. 28370-4-III
State v. Combs

later, Mr. Combs allegedly violated the conditions of release and a warrant was issued for

his arrest.

On July 18, 2009, Clarkston police observed Mr. Combs driving in excess of 90

mph on Chestnut Street in Clarkston. They attempted to stop him, but he successfully

evaded the officers. Charges of attempting to elude a pursuing police vehicle, reckless

driving, and third degree driving while license suspended were filed under Asotin County

No. 09-1-00118-0. The charging document also alleged that the aggravating factor of

rapid recidivism applied to the eluding offense.

Mr. Combs reached a plea agreement with the prosecutor. He waived his right to a

jury trial on the aggravating factor and entered a plea of guilty to the eluding charge while

allowing the judge to decide if the aggravating factor applied to his case. The two driving

offenses were dismissed, as was the unidentified felony offense in No.

09-1-00001-0. With an offender score of 10, Mr. Combs faced a standard range of 22-29

months on the eluding charge. He sought a standard range term; the plea agreement

allowed the prosecutor to seek an exceptional sentence for rapid recidivism.

After hearing argument, the trial court concluded that the rapid recidivism

aggravating factor did apply to Mr. Combs' conduct. The court imposed an exceptional

1 The record on appeal does not identify the charge(s) filed in Asotin County No.
09-1-00001-0.
2

No. 28370-4-III
State v. Combs

sentence of 35 months. Mr. Combs then timely appealed to this court.

ANALYSIS

Mr. Combs makes several arguments that we need not address because we agree

with his legal conclusion: the rapid recidivism factor does not apply to an attempting to

elude offense committed six months after release from incarceration.

The aggravating factor is found in RCW 9.94A.535(3)(t): "The defendant

committed the current offense shortly after being released from incarceration." An

appellate court reviews de novo a trial court's determination that an aggravating factor

justifies an exceptional sentence. RCW 9.94A.585(4); State v. Law, 154 Wn.2d 85, 94,

110 P.3d 717 (2005).
Two published cases have dealt with the issue of rapid recidivism.2 The first case

was State v. Butler, 75 Wn. App. 47, 876 P.2d 481 (1994), review denied, 125 Wn.2d

1021 (1995). There the defendant, in separate events, committed second degree robbery
and an attempted second degree rape on the same day3 that he was released from prison

2 The factor was also discussed in State v. Hughes, 154 Wn.2d 118, 141-142, 110
P.3d 192 (2005). There the court reversed an exceptional sentence for lack of a jury
determination that the aggravating factor existed. In that case the defendant, less than
three months after being released from custody, had committed the same offense against
the same victim. Id. at 141. Hughes did not discuss the validity of the factor, but only
discussed how it needed to be proven.
3 It was alleged the first offense occurred 12 hours after release from prison. 75
Wn. App. at 49.
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No. 28370-4-III
State v. Combs

after serving a sentence for first degree robbery. The court upheld the exceptional

sentence.

Thus, we hold that the commission of a crime shortly after release from
incarceration on another offense may properly be used to distinguish that crime from
others in the same category. Hence, under circumstances such as those in the present
case, rapid recidivism constitutes a sufficiently substantial and compelling reason to
justify the imposition of an exceptional sentence.

Butler, 75 Wn. App. at 54.

The issue was next visited in State v. Saltz, 137 Wn. App. 576, 154 P.3d 282

(2007). There the defendant, on the 30-day anniversary of his release from jail after

serving a sentence for violating a no-contact order, committed malicious mischief against

the same victim. Id. at 579, 585. He stipulated that the conduct was committed "shortly

after being released from incarceration." Id. at 585. This court agreed that the short

period of time between offenses and the fact that it involved the same victim and was

similar to the crime of prior incarceration "shows the disregard for the law referenced in

Butler." Id. The exceptional sentence was affirmed. Id. at 586.

Mr. Combs essentially argues that Butler and Saltz set the boundaries for what

constitutes rapid recidivism -- a period of time not exceeding 30 days and some

connection between the former crime and the current one. We disagree. As described in

Butler, the gravamen of the offense is disdain for the law. 75 Wn. App. at 54. The

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State v. Combs

statutory requirement, however, is that the new current offense be committed "shortly

after being released from incarceration." RCW 9.94A.535(3)(t). The statute does not

require a connection between the offenses and we do not read the cases as requiring one.

Instead, the noted connections (similarity of offenses or victims) were simply additional

evidence of disregard for the law.

Nonetheless, we agree with Mr. Combs that an eluding offense committed six

months after release from prison for drug possession is not an offense committed "shortly

after being released." Six months is not a short period of time. We do not set an outer

time limit on what constitutes a short period of time. That period will vary with the

circumstances of the crime involved. Some offenses require a lengthy period of time to

plan or come to fruition. In other instances, an offender might not have immediate access

to the means of committing a crime or might not have had the opportunity to reoffend
before he did so.4 Under different circumstances, six months might constitute a short

period of time.

This case, however, does not present those circumstances. Attempting to elude

typically is an impulse crime brought about by circumstances. There was no planning or

4 If, for instance, Mr. Combs had been delayed in returning to Asotin County from
prison or living under close supervision at a work release facility and committed a crime
in his first opportunity to do so, it could conceivably constitute rapid recidivism. We
leave other fact patterns for other cases.
5

No. 28370-4-III
State v. Combs

premeditation. Mr. Combs had been released from custody and was present in Asotin
County for six months before this offense. This was not rapid recidivism.5

The exceptional sentence is reversed and the case remanded for sentencing within

the standard range.

_________________________________
Korsmo, J.

WE CONCUR:

______________________________
Kulik, C.J.

______________________________
Sweeney, J.

5 We appreciate the parallels between appellate court review of a legal conclusion
in this area and Justice Potter Stewart's famous definition of pornography: "I know it
when I see it." Jacobellis v. Ohio, 378 U.S. 184, 197, 12 L. Ed. 2d 793, 84 S. Ct. 1676
(1964).
6