21 NICS App. 1, WILLIAMS v. TTT (February 2023)

IN THE TULALIP TRIBAL COURT OF APPEALS

TULALIP INDIAN RESERVATION

TULALIP, WASHINGTON

Daniel Williams, Jr., Defendant/Appellant,

v.

The Tulalip Tribes, Plaintiff/Appellee.

NO.    TUL-CV-AP-2022-0246 (February 27, 2023)

SYLLABUS*

Appellant argued tribal court made mistakes in law and procedure when it revoked his probation and reinstated balance of incarceration term. Court of Appeals found tribal court erred when it relied on inadmissible evidence and erroneous factual finding to make decision. Tribal court’s order vacated and remanded for further proceedings.

Before:	Daniel A. Raas, Chief Justice; Ric Kilmer, Justice; John C. Sledd, Justice.
Appearances:	Maya Titova, Meredith Harris, Brenda Williams, and Renee Ambacher of the University of Washington Tribal Court Public Defense Clinic, for Appellant; Markus Surratt, Tulalip Tribes Prosecutor, Office of the Reservation Attorney, for Appellee.

OPINION

Per curiam:

SUMMARY OF PROCEEDINGS

This matter is before the Tulalip Tribal Court of Appeals pursuant to an Amended Notice of Appeal filed July 7, 2022, by Daniel Williams Jr., appealing the Tribal Court's May 2, 2022, Order on Probation Hearing, the related Order of Commitment, and the subsequent denial of Appellant’s Motion for Reconsideration. Mr. Williams argues that the Tribal Court made mistakes in law and procedure that affected the outcome of these proceedings.

21 NICS App. 1, WILLIAMS v. TTT (February 2023) p. 2

The Notice of Appeal was timely filed and served, as required by Tulalip Tribal Code (TTC) 2.20.030(1) and (3). The May 2 order is a final order and thus is appealable. TTC 2.20.020(2)(a).

TTC 2.20.020(1) requires that the party appealing claim “in good faith, that the Tulalip Tribal Court made a mistake in interpreting the law or a mistake in procedure which affected the outcome of the case.” TTC 2.20.030 provides that the appealing party, in its notice of appeal, state the reason or grounds for appeal.

For this appeal, we decide the issues raised by reviewing the written and oral Tribal Court record, the written briefs filed with this Court, and the parties' oral arguments. TTC 2.20.100.

Daniel Thomas Williams Jr. was charged in the Tulalip Tribal Court with two crimes he allegedly committed on February 23, 2021. On April 19, 2021, he pled guilty to one count of Aggravated Assault (Domestic Violence), in violation of TTC 3.15.040(1)(c), a Class F Offense, which carries a maximum penalty of 1,095 days (three years) in jail, a $15,000 fine, or both. The other criminal count filed against Mr. Williams was dismissed as part of plea negotiations.

The trial court entered Findings of Fact and Conclusions of Law regarding Appellant’s guilty plea, and imposed a sentence of a $450.00 fine and 1,095 days (three years) in jail. The Court ordered that 730 days (two years) of the total jail be suspended upon compliance with certain specified conditions—including no further criminal violations, obtain a chemical dependency evaluation and comply with all treatment recommendations, and enroll in and successfully complete domestic violence batterer’s treatment, among other conditions. It also ordered that the Tulalip Probation Department (“Probation Dept.”) supervise Mr. Williams’s compliance with these conditions for three years, with supervision to “commence upon release from custody.” Trial Court Record (“Record”) at 67. The Court stated that the “Original Expiration Date” of the sentence was to be April 19, 2024. Record at 65, handwritten date in the Judgment and Sentencing Order caption. Appellant did not appeal this sentence and its validity is not before us. His failure to appeal precludes a collateral attack on this sentence in this proceeding.

After Mr. Williams was credited with 365 days of un-suspended jail time (credit was given for time served prior to sentencing and for “good time” credit earned while in jail), he was released on October 26, 2021. He almost immediately fell out of compliance with the Court-ordered conditions for suspension of the remaining 730 days (two years) of jail. As a result, the Probation Dept. requested that an arrest warrant be issued, which was done December 16, 2021. He was arrested on March 31 and brought to Court on the warrant 110 days after it was issued, on April 5, 2022. The Probation Dept. filed a motion to revoke Mr. Williams’s probation on the grounds that he had failed to check in with the Probation Office, failed to comply with chemical dependency treatment, and failed to submit to urinalysis. Record at 36, 45, 82. On May 2, 2022, a probation revocation hearing was conducted pursuant to the provisions of TTC 2.25.160(2). At that hearing Mr. Williams was given the opportunity to bring facts in mitigation of his alleged probation violation to the Court (“Probation Court”), and he admitted each of the three alleged violations of probation. May 2, 2022 Probation Revocation Hearing Video Transcript at 29:24.

As the penalty therefore, the Probation Court considered reinstating one year of the two years of jail that originally had been suspended, and suspending the one year remaining after Mr.

21 NICS App. 1, WILLIAMS v. TTT (February 2023) p. 3

Williams has served this second year of jail from the date of the probation violation hearing. At first Mr. Williams demanded that the Court just reinstate the remaining two years of jail. But he reconsidered later and withdrew that request. May 9, 2022, Video Transcript at 54:17-55:52. In its final Order, the probation judge reinstated the 730 days of jail, with nothing suspended. But the Court did note in its Order of May 2, 2022, that Mr. Williams was allowed to petition for early release to substance abuse treatment after having served one of the two years that were reinstated. The Probation Court also ordered that Mr. Williams’ three years of supervision/probation would “restart” on the date of the order and end on May 22, 2025—which is about three weeks longer than three years from the May 2, 2021, probation violation hearing. Mr. Williams timely appealed.

Then, in mid-September 2022, long after Appellant had filed his Notice of Appeal and this Court had received the Trial Court Record, Appellee Tulalip Tribes attempted to supplement the trial court record with four additional pages, consisting primarily of a document called a “Superform”—which concerned the probable cause for Mr. Williams’s original arrest on the underlying charges back in February 2021. Appellant objected in writing to this ex parte attempt to supplement the record before this Court of Appeals.¹

STANDARD OF REVIEW

TTC 2.20.090 provides the relevant standards that this Court of Appeals is to use when reviewing decisions of the Tribal Court:

(4) A conclusion of law shall be reviewed de novo, or without deference to the Tribal Court’s determination;...

(7) A sentence and the imposition of fine, forfeiture, or other penalty, excluding the assessment of damages, shall be reviewed as a discretionary determination of the Trial Court; ...

(8) A matter which is within the discretion of the Tribal Court shall be sustained if it is reflected in the record that the Tribal Court exercised its discretionary authority, applied the appropriate legal standard to the facts, and did not abuse its discretion. A matter committed to the discretion of the Tribal Court shall not be subject to the substituted judgment of the Court of Appeals.

21 NICS App. 1, WILLIAMS v. TTT (February 2023) p. 4

We have addressed the question of how to apply the abuse of discretion standard many times, e.g. Parks v. Taylor, 16 NICS App. 1, at 3-4 (Tulalip Tribal Ct. App. 2018) and cases and authorities cited therein.

DISCUSSION

Appellant Mr. Williams raises a number of issues in support of his appeal. He asks the Court of Appeals to review both the Tribal Court’s decision to revoke probation in the first place, and the duration of probation and incarceration ordered. Appellant’s Opening Brief, at p. 6.

His primary arguments are that the Court that revoked his probation (which, again, we are referring to as the “Probation Court”) applied an “improper legal standard” and abused its discretion (a) by relying on facts that were alleged in support of the charge that was dismissed and were neither admitted nor proven, (b) by ignoring the rehabilitative and restorative goals of the Tulalip Tribes’ laws, and (c) by failing to apply standards of the Indian Civil Rights Act (ICRA), 25 U.S.C. §§ 1302(a)(7)(A) and (a)(8), and (a)(7)(C). He further argues that the Court violated TTC 2.25.160(3) by restarting his three-year probation term on the date of the probation order without his consent. He claims that restarting probation after completion of jail violated the ICRA in several ways. He argues a Double Jeopardy violation because the probation violation sanction was based on charges that had already been adjudicated and subject to sentencing or dismissed. He argues that the duration of incarceration and probation together exceeded the maximum penalty permitted by 25 U.S.C. § 1302(7)(C) and constituted “cruel and unusual punishment.” Finally, he argues that due process was denied by failure to provide him adequate notice of the evidence against him and failure of the revocation order to explain the evidence it relied on.

However, because we rely on Tulalip statutory law to reverse the sanctions ordered for the probation violations, we need not determine many of the issues Appellant raises concerning the Indian Civil Rights Act.

The Appellant did not appeal and has sought no other relief from the original sentence, so we will treat it as in all respects valid and binding as the law of the case. Given that, our task is to consider these three issues raised by the Appellant: (1) whether his probation was properly revoked; (2) whether the Probation Court erred when it reinstated the three years of incarceration (with appropriate credits) imposed by the trial court; and (3) whether the Probation Court erred when it restarted the three years of probation beginning after the three years of incarceration were served. The first and third questions involve questions of law and are reviewed de novo, without consideration of what the Probation Court ruled. The second is a mixed question of discretionary authority and law, and is reviewed under an abuse of discretion standard for the Probation Court’s discretionary ruling, and de novo for its rulings of law. Factual findings underlying the Probation Court’s decisions are reviewed for clear error.

1.    Was Appellant’s probation subject to revocation?

21 NICS App. 1, WILLIAMS v. TTT (February 2023) p. 5

On May 2, 2022, a probation revocation hearing was conducted pursuant to the provisions of TTC 2.25.160(2). Mr. Williams appeared and admitted that he had violated probation. May 2, 2022 Video Transcript at 18:36-18:59, 28:45-29:23, and 29:24.

“If the probationer admits to violating a condition of probation, the Court may revoke the probation after the probationer has had the opportunity to offer testimony or evidence regarding any circumstances tending to mitigate the violation.” TTC 2.25.160 (2)(f).

Therefore, whether Mr. Williams violated the terms of his probation such that it might be revoked is not at issue before this Court of Appeals. The only issues are whether improper procedure was used or discretion abused when the Probation Court revoked probation once it had found as a fact, and concluded as a matter of law, that Mr. Williams had violated the terms of his original sentencing order.

2.    Did the Probation Court err when it revoked probation and imposed the balance of the three years of incarceration as a penalty for violating probation?

A.    Was revocation of probation and reinstatement of the balance of the three years of incarceration permissible?

TTC 2.25.160(3) provides (with emphasis added):

Penalty upon Revocation of Probation. A probationer who is found, after a hearing, to have violated a condition of his or her probation may be required:

(a) In the case of probation during a suspended sentence, to serve the term of the original sentence in whole or in part, including incarceration and payment of fines; or

(b) In the case of deferred imposition of sentence, to serve such sentence as may be imposed by the Court after a sentencing hearing.

(c) Probation may be continued with consent of defendant and approval by the Court.²

Mr. Williams did not consent to any continuance of probation under subsection (c) nor was there any deferral of sentence which would bring subsection (b) into question. Therefore, the Probation Court was left with only one option, under subsection (3)(a): to have Mr. Williams “serve the term of the original sentence in whole or in part, including incarceration[.]” On its face, that is a permissible “penalty” under the Code.

As penalty, the Probation Court reinstated the 730 days of jail that had been suspended at the original sentencing hearing in April 2021. But the Court did note in its May 2, 2022 order

21 NICS App. 1, WILLIAMS v. TTT (February 2023) p. 6

that Mr. Williams would be allowed to petition for early release to substance abuse treatment, after he had served the second year of jail.

Without other considerations, the reinstatement of the original sentence is explicitly permitted by TTC 2.25.160(3)(a) and we would not disturb the discretion of the Probation Court.

Appellant claims that the Probation Court abused its discretion when it reinstated the balance of incarceration. This is a separate issue from whether the cancellation of the probation initially ordered by the Trial Court is allowed.

He argues that the Probation Court abused its discretion by ignoring “express rehabilitative goals” of the Tulalip Tribes’ laws, disregarding the Probation Department’s recommendation of immediate release to inpatient treatment, and relying instead on “improper facts” and a “punitive framework.” He argues that the Court should have considered other methods of punishment (penalties for probation violation) and whether revocation of probation was even necessary. Appellant’s Opening Brief, pp. 13-16, 18-20. Three arguments are presented here: (1) Did the probation judge rely on inadmissible evidence in reinstating the term of imprisonment; (2) did the probation judge ignore evidence regarding alternatives to incarceration and the “express rehabilitative goals” of the Tulalip Code, TTC 3.05.010(3) and (4); and (3) did the Court fail to make required findings and conclusions in support of its decision?

In its consideration at the hearing of the penalty to be imposed for violation, the Probation Judge referred to an unidentified document to find that Mr. Williams had been convicted of strangling the victim, hitting her with a 2x4, kicking her in the face, and “knocking all her teeth out.” May 2, 2022 Transcript 41:45–42:33. But the specifics of the victim’s injuries and the manner of their infliction – by kicking or by striking with hands – were neither admitted nor proven at Appellant’s hearing on his plea of guilty. Those allegations were before the sentencing court only in Count 2 of the Complaint, for Aggravated Assault (Domestic Violence). These allegations were not part of the Findings of Fact in the initial sentencing documents.

TTC 2.25.160(2) sets out a detailed procedure for deciding when probation should be revoked. The due process rights of the alleged probation violator are extensive and clear. In determining whether a person has violated probation, these sub-paragraphs of TTC 2.25.160(2) govern the admissibility of evidence:

(g) If the probationer does not admit to violating a condition of the probation, the Prosecutor or Probation Office has the burden of proving by a preponderance of the evidence that the probationer violated a condition of the probation. Evidence may not be suppressed on the ground that, if an admission of a violation, no warning was given of a right not to incriminate oneself. The Judge may issue an order that any testimony or

21 NICS App. 1, WILLIAMS v. TTT (February 2023) p. 7

information from the defendant may not be used against the defendant in any criminal case arising from the same charge or incident that is the basis for the revocation.

(h) Revocation may be based on demonstrably reliable hearsay evidence unless the Judge request witnesses present on the issue. The Prosecutor may show any aggravating circumstances, and the probationer may show any mitigating circumstances.

(i) The Court shall determine the appropriate disposition of a petition for revocation. An order revoking probation shall be in writing.

TTC 2.25.160(3), above, is silent as to the due process to which a probation violator is entitled when the penalty for violating probation is assessed. We hold that in considering the penalty for a probation violation the Court must accord a violator the same rights set out in TTC 2.25.160(2)(g) and (h) if it wishes to rely upon allegations that go beyond the facts found at trial or upon a guilty plea. The probation judge did not require the Prosecution or the Probation Office to prove allegations upon which it relied to impose the sentence for the probation violation. This was an error of law.

The court also made and relied upon a finding that Mr. Williams violated his probation terms “as soon as he was released.” May 2, 2022, Transcript 42:19-42:25. Although the Prosecutor made that assertion (id. at 35:15-35:20), the evidence showed that upon release Mr. Williams reported to Probation and began treatment, and was compliance with probation conditions for a brief period. Record at 82, 85-86. The Probation Court’s finding to the contrary was clearly erroneous and appears to have contributed to its decision to “restart” probation.

Appellant argues that, by relying on any facts not stated in the Petition for Probation Revocation, the Probation Court failed to provide him notice required by due process and by TTC 2.25.160(2). Opening Brief at 13-16. Under TTC 2.25.160(1), the petition for revocation must “include, but not be limited to, facts showing the basis for the arrest and for revocation of probation.” Similarly, TTC 2.25.160(2) states that the probationer is “entitled to notice of … the grounds for the proposed revocation….”As discussed above, the Probation Department’s motion set forth sufficient grounds to make probation revocable. The Code does not require that every fact considered by the Probation Court be stated in the revocation motion.

We need not decide the novel claim that due process requires that every fact to be considered at the revocation hearing be disclosed before-hand, in the motion or otherwise. The Court’s reliance on inadmissible evidence and a clearly erroneous factual finding are sufficient to warrant reversal. This Court cannot say what penalty the Probation Court might have imposed absent these errors, nor is it the role of this Court to set a proper penalty. We therefore vacate the May 2, 2022 Order on Probation Hearing and remand for a new revocation hearing.

We agree with Appellant that in reaching its decision, the Probation Court was required to take into account the rehabilitative and restorative policies of the Tulalip Tribes, just as it must consider community protection and other goals of the justice system stated in tribal law. We

21 NICS App. 1, WILLIAMS v. TTT (February 2023) p. 8

conclude that the Probation Court did so here, allowing Appellant be released early from the one year of additional jail to enter substance abuse treatment.

We do not agree that due process or other Tulalip law required a specific finding that alternatives to incarceration were unavailable or insufficient, or required more findings of fact in the written revocation order. Cf. Opening Brief at 20-23. As stated in Black v. Romano, 471 U.S. 606, 616 (1985):

The memorandum prepared by the sentencing court and the transcript of the hearing provided the necessary written statement explaining the evidence relied upon and the reason for the decision to revoke probation. Romano does not dispute that he had a full opportunity to present mitigating factors to the sentencing judge and to propose alternatives to incarceration. The procedures required by the Due Process Clause of the Fourteenth Amendment were afforded in this case, even though the state judge did not explain on the record his consideration and rejection of alternatives to incarceration.

Compare: Port Gamble S’Klallam Tribe v. Callihoo,10 NICS App. 124, 128 (Pt. Gamble Tribal Ct. App. 2012) (“In addition, the record and the Community Court’s written findings and conclusions are woefully inadequate to allow for meaningful appellate review.”). Accord, State v. Dahl, 139 W.2d 678, 402 (1999) (“Although oral rulings are permitted, we strongly encourage judges to explain their reasoning in written findings.”).

The Probation Court, at Mr. William’s revocation hearing, sufficiently stated the facts it relied upon (although some were inadmissible and others in error) and its reasoning. In the relatively informal context of a probation revocation proceeding, we do not find it significant that the Court said more at the hearing than in its written order, where the verbatim recording of the hearing has been provided to Appellant and this Court.

C. Was the reinstatement of the three year probation beginning at the end of the incarceration time proper?

The Probation Court also ordered that the three years of supervision/probation would restart anew as of May 2, 2022.³ The imposition of probation beyond the trial court’s initial punishment of three years is also at issue here.

This reinstatement beyond the initial three-year incarceration is not permitted by TTC 2.25.160(3), above, which limits the penalties which may be imposed for a violation of probation to “serv[ing] the term of the original sentence in whole or in part.” This is an error of law.

21 NICS App. 1, WILLIAMS v. TTT (February 2023) p. 9

We first determine what was “the term of the original sentence” in the Judgment and Sentence Order. Its caption states that the original sentence would expire April 19, 2024, three years from the sentencing date, but its text says that thirty-six months of supervision by the Probation Office will commence on the date of release from the one year of un-suspended jail time, and thus the sentence might not end for as much as four years from the sentencing date. In construing the sentence, we seek to determine the intent of the issuing court, as reflected in the record as a whole, U.S v. Carter, 742 F.3d 440, 448 (9th Cir. 2014).

We conclude that the Tribal Court intended that both the jail term and probation to which Mr. Williams was sentenced would last no more than three years from the date of sentencing. This is the only interpretation that gives effect to the very specific “expiration date” in the caption of the judgment. Cf., U.S. v. Rodriguez, 682 F. 2d 827, 829 (9th Cir. 1982) (relying on clearly stated end date for stated term of probation as evidence of the intended starting date). This is also the interpretation that the Probation Office gave to the judgment and its obligations thereunder. See Record at 45 (reporting that, with tolling due to warrant, probation will end August 7, 2024 – 110 days after the initial sentencing date).

Our reading of the judgment results in a shorter probation, thus resolving the ambiguity in the defendant’s favor. See Twogood v. State, 196 P.3d 1109, 1114 (Alaska Ct. App. 2008). And it avoids the need to decide whether the ICRA permits probation that extends beyond the maximum three year jail sentence allowed by 25 U.S.C. 1302(a)(7)(C) and 1302(b).

The initial sentence imposed a penalty lasting three years, some which could be supervised by the Probation Department. No longer period may be imposed on Mr. Williams as penalty for violating probation, without running afoul of TTC 2.25.160(3) and the prohibition on double jeopardy in TTC 2.25.070(2)(h) and 25 U.S.C. 1302(a)(3). The Probation Court, however, ordered that Appellant serve the remainder of his three year sentence pursuant to TTC. 2.235.160(3)(a) and then added three additional years of probation, starting on May 2, 2022. The probation period extended beyond the three year duration of the original sentence. None of the original sentence was deferred, so TTC 2.25.160(3)(b) is not relevant. Appellant did not consent to the extension of probation, negating the application of TTC 2.25.260(3)(c). This was an error of law.

D. Determination of the time remaining in Appellant’s sentence

This leaves the question of how much time remains for Appellant to serve, either incarcerated or under such probationary conditions as the Tribal Court shall impose on remand.

Based upon our reading of the original sentencing order, the 36 months of incarceration and probation were to end April 19, 2024. The only two ways probation could be extended beyond that date, by statute, were: 1) if Appellant consented pursuant to TTC 2.25.160(3)(c), which he did not do; or 2) if time is added on because of tolling pursuant to TTC 2.25.150(4)(b): “A warrant in any Tulalip Tribal Court matter will toll the probationary period for all cases.”

Appellant fell out of compliance in November 2021, after he was released having served and been credited with a total of one year of jail. A warrant was issued December 16, 2021, and

21 NICS App. 1, WILLIAMS v. TTT (February 2023) p. 10

he appeared in court on April 5, 2022. Appellant’s probation was accordingly tolled for the 110 days from warrant issuance to appearance, and will end on July 7, 2024.⁴

When Appellant was released after the initial year of jail, he had two years or 730 days of his three year sentence remaining. Appellant is entitled to credit for the 31 days between his March 31, 2022, arrest on the probation violation warrant and the revocation of probation on May 2, 2022. The Probation Court improperly imposed two years imprisonment without the 31 day credit, plus it restarted three additional years of probation. This was both an abuse of discretion for failure to give proper credit for time served and incorrect as a matter of law for it exceeds the maximum imposed by the original sentence.

Because the total sentence imposed by the Trial Court on April 19, 2021 was not appealed and because we conclude that the Probation Court is limited to that three year sentence, we need not consider any remaining due process claims under Tulalip law or ICRA claims, as intriguing as these issues may be. We express no opinion on these questions.

ATTEMPT TO SUPPLEMENT RECORD ON APPEAL

Finally, we address the issue of Appellee’s attempt to supplement the Court of Appeals’ record with the “Superform” documents via an ex parte request to the Court Clerk. TTC 2.20.070 states in relevant part:

The record on appeal shall be made up of all papers filed in a case plus the audio recording and/or transcript made of all Court hearings in the case. Upon receipt of a Notice of Appeal, the Trial Court Clerk shall make sure that the case record is complete and in order and shall make the record available to all parties for inspection and copying at the parties’ expense.

If Appellee believed that the Superform should have been part of the record sent to this Court, it should have made a motion pursuant to TTC 2.20.070(2) (requesting “Court action” to supplement the record). No such motion was made.

But this is a harmless and moot issue because the Court of Appeals did not consider the Superform whatsoever in rendering this Opinion.

CONCLUSION AND ORDER    

We conclude that the lower Court erred, in its May 2, 2022 Order on Probation Hearing, when it ordered (1) the balance of the incarceration time be served, based in part on inadmissible evidence and an erroneous factual finding, and (2) the three years of probation to begin anew that day, ending May 22, 2025.

21 NICS App. 1, WILLIAMS v. TTT (February 2023) p. 11

In summary, we hold that (1) the initial sentence imposed by the Tribal Court sets the limits and duration of the penalties that Court could impose when Mr. Williams violated probation, (2) any challenges based on the Tulalip Constitution and ordinances or on the Indian Civil Rights Act to that initial sentence must be brought by appeal of that initial sentence, and not collaterally attacked in a challenge to penalties imposed for violation of probation, and (3) the Tribal Court made sufficient findings to comply with due process. We express no opinion on whether an initial sentence that includes probation lasting longer than the maximum term of confinement imposed by the Tulalip Code, or longer than a sentence of three years’ confinement, violates either the Tulalip Constitution or ordinances or the Indian Civil Rights Act.

IT IS HEREBY ORDERED that the May 2, 2022 Order on Probation Hearing is vacated, and this matter is remanded for the Court to conduct a hearing: (1) to reconsider its decision reimposing the balance of imprisonment time, either using the facts found by the Court or complying with TTC 2.25.160(2)(g) and (h), making any requisite findings of fact and conclusions of law; and (2) to reconsider its decision regarding whether any of this sentence may be served as probation. Mr. Williams shall remain in custody pending further Tribal Court order.

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The syllabus is not a part of the Court’s Opinion. The syllabus is a summary of the Opinion prepared by the publishers of this reporter only for the convenience of the reader. Therefore, the syllabus should not be cited in whole or part as legal authority. Only the Opinion, which follows the syllabus, may be cited as legal authority.

On January 18, 2023, the Tribal Court, sua sponte, issued an Order Modifying Sentence Nunc Pro Tunc that, inter alia, recalculated the number of days of credit Appellant should receive toward his jail sentence and recognized that in this case probation was limited by the initial three year sentence imposed by the Tribal Court rather than the extended probation imposed after Appellant violated his initial probation.  That order raised a number of potential issues such as whether the Court has jurisdiction to issue such an order while this appeal is pending, and how an error which is discovered after acceptance of an appeal can be brought to the attention of the Court of Appeals. See, e.g.: TTC 2.20.070(2), Fed. R. Crim. 35, Fed, R. App. 12.1, Wash. Sup. Ct. Crim. R. 7.8 and Wash. R. App. 7.2. However, because of our disposition of the pending appeal in this Opinion, we need not address any such potential issues.

TTC 2.25.150(4) explicitly allows probation to exceed the maximum confinement set under TTC 2.25.150(2)(b)(1).

Under TTC 2.25.160(3)(a) no credit against a jail sentence need be given for the period in which a probationer is in compliance with probation conditions, prior to revocation; the Court may still impose “the term of the original sentence in whole or in part.” This is consistent with practice in other jurisdictions. E.g., State v. Pannell, 173 Wash. 2d 222, 232-33, (2011) (no constitutional requirement that probation be credited as time served, following its revocation).

However, if Mr. Williams is not released and serves the remaining two years, even if released early for any good time credit, then “the matter effectively becomes serve and close at that time, which would result in probation being terminated.” May 6, 2022 Order Denying Motion for Reconsideration, p. 1, lines 17-18.